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Carolina Gold – The New Crop to Bring South Carolina Back Into Prominence

Carolina Gold – The New Crop to Bring South Carolina Back Into Prominence

  1. Introduction

The economy of South Carolina was built in the minds of a few who had the foresight to implement a crop that may or may not grow in the marshy area of the low country. Emanating from Africa and Indonesia, Carolina Gold Rice, a long grain was the basis of the colonial and antebellum economy of the Carolina region and Georgia. Considered the grandfather of long grain rice in the Americas, it became a commercial staple grain in the coastal lands of Charles Towne in the Carolina Territory in 1685.1

Carolina Gold grew in prominence and demand on the backs of those who worked the farms. It brought prominence to the Carolinas, wealth to many families, and work to even more. It was not the perfect crop as it had its issues and led to many disagreements, but its implication on historic South Carolina and America cannot be disputed. Likewise, the new crop to be harvested on the farms in the United States and specifically South Carolina will have major implications on the future of many people.

Like Carolina Gold, offshore energy is ripe for the picking in the Atlantic Ocean territory of the United States of America. In 2008, the South Carolina General Assembly established the South Carolina Natural Gas Exploration Feasibility Study Committee to examine the potential of wind and natural gas exploration off the coast of South Carolina.2 The Committee recommended that the state consider the development of an offshore natural gas industry, but only when the Bureau of Energy Management executes a five year plan that includes natural gas exploration off the South Carolina coast (South Carolina Natural Gas Exploration Feasibility Study Committee, 2009).3 Further, of the offshore renewable energy sources (wind, ocean current, and wave), wind has the greatest potential for development in the South Atlantic Planning Area within the next several years. Ocean current and wave energy technologies are being explored in other regions where their resource potential is greater. Wind maps for South Carolina, North Carolina, and Georgia show that there are areas with sufficient wind speed, water depth, and distance to shore for potential offshore wind energy development in these three states.

Wind energy becomes feasible with annual average wind speeds greater than 7 meters/second at 90 meters (m) above the surface.4 There are initiatives in South Carolina, North Carolina, and Georgia to develop offshore wind. In March 2009, a project was launched by the Palmetto Wind Research Project, a collaborative project of Santee Cooper (a public utility), Coastal Carolina University, and the South Carolina Energy Office to study the possibilities of generating wind energy off the South Carolina coast.5 As of May 2011, this project had completed preliminary wind mapping (the strongest, closest to shore winds are in the northern part of the state), deployment of coastal anemometers (measures wind speed) and six offshore buoys along two transects, high level environmental checks, a preliminary design of an offshore meteorological tower off the mouth of Winyah Bay, and a conceptual design for a demonstration-scale offshore wind farm of up to 20 wind turbines 6.5–8 km off the mouth of Winyah Bay.6 The demonstration wind farm is planned to produce 40 megawatts (MW) of electricity.7 In May 2011, BOEM announced the establishment of a task force with the federal, state, local, and tribal governments in South Carolina to facilitate intergovernmental communications regarding OCS renewable energy activities.

According to the National Renewable Energy Lab (NREL), Virginia, North Carolina, South Carolina, and Georgia have 82% of the East Coast resource in shallow water and more than 12 miles offshore and 45% of the total East Coast offshore wind resource.8 Offshore wind and biomass represent the two largest scale renewable energy options for the Southeastern U.S.

Table 1: 9

Based on this potential, South Carolina Act 318 of 2008 created a committee to review, study, and make recommendations regarding the feasibility of windmill farms in the state including, but not limited to, whether South Carolina is a suitable site for wind production on land or in offshore areas, the economic and environmental impact to the state, and the cost of wind farm installation and operation in the state.10 In response on May 29, 2013, H. 4166 was introduced in the South Carolina House and on February 16, 2014, S. 1011 was introduced in the South Carolina Senate to introduce Offshore Wind as a viable energy source in the State of South Carolina.11 These bills are only the beginning in a long arduous process involving state and federal permitting/leasing, regulations, and legal implications for offshore wind energy. We will explore this process for implementing offshore energy in South Carolina, as offshore oil and gas have been discussed by many authors in many journals, we will look at offshore alternative energy (wind), however many of the regulations/laws are shared concerning offshore energy sources in the United States and specifically in South Carolina.

  1. Current Status of Wind Energy in the United States

Presently, no operational wind facilities are in place in coastal or federal waters of the United States. The projects in the planning and permitting stage include the Cape Wind project, to be located off the coast of Cape Cod in Massachusetts,12and the Bluewater Wind project, to be located approximately eleven miles off the coast of Delaware.13 The Cape Wind project in particular has encountered considerable local opposition from some quarters: fishermen, sailors, some environmentalists, boaters, and others.14 However, despite the opposition, Cape Wind has received the permits necessary to commence the project.15

When completed, Cape Wind will consist of approximately 130 wind turbine generators16 capable of producing approximately 454 megawatts (“MW”) of energy.17 The 3.6 MW wind turbine generators will be located approximately 0.3 to 0.5 miles apart and the total array spread over twenty-four square miles.18Although the towers will extend only 257.5 feet above the water surface, each wind tower blade will reach 440 feet above the water.19 This wind facility will be located in federal waters in Nantucket Sound, sheltered on the north by Cape Cod, to the west by Martha’s Vineyard, to the south by Nantucket Island, and to the east by the Great Sound Shoal.20 One reason Nantucket Sound was chosen as the location of this project is that it is relatively sheltered from significant Atlantic Ocean wave action and extreme storm waves.21 Its closest distance to shore will be 4.7 miles, and its furthest will be approximately 11 miles.22 This means a number of turbines will be visible from some points on the shores of Cape Cod and Martha’s Vineyard but not from Nantucket. The cost of construction for this project is estimated to be as high as $2 billion.23

In 2006, Bluewater Wind LLC (“Bluewater Wind”)24 proposed a similar project, estimated to cost $1.6 billion,25 to be located in federal waters, at least eleven miles off the coast of Delaware in the Atlantic Ocean.26 At this distance, the turbines would be barely visible from the Delaware coastline.27 The future of this project is uncertain. The original project proposed the installation of more than 100 wind turbine generators capable of producing approximately 450 MW of electricity;28 however, the June 2008 power purchase agreement between Bluewater Wind and an onshore receiving utility company will only support the construction of fifty-five to seventy wind turbines.29 If Bluewater Wind decides to build more than seventy turbines, it will have to find another purchaser for the generated power.30 Another factor is the uncertain financial future of Bluewater Wind itself. In February 2009, Babcock & Brown, the Australia-based company that owns virtually all of Bluewater Wind, announced plans to liquidate its assets in order to satisfy creditor claims.31 This means that Bluewater Wind will need to find new financial backing for the Delaware project.32

A major difference between the Cape Wind project and the Bluewater Wind project is that the Bluewater Wind project is the first one proposed for open ocean waters; for that reason, it will confront significant location and construction challenges. Sea conditions in an ocean location may be one reason for the September 2007 official cancellation of a similar project proposed by the Long Island Power Authority (“LIPA”) to be sited off the South Shore of Long Island.33 In 2003, when Cape Wind evaluated that site, the president of Cape Wind wrote a letter to LIPA stating “that the anticipated sea conditions in the Target Area pose unacceptable conditions. Both the significant wave and extreme storm wave are nearly three times that associated with current state-of-the-art offshore wind projects.”34 The official LIPA reason for cancellation was the high cost of construction.35 The original projected cost in 2003 was $200 million but eventually ballooned to $811 million by the time LIPA decided to cancel the project.36

Other states, such as New Jersey and Rhode Island, are also pursuing wind energy development off their coasts. New Jersey has adopted a renewable energy incentive program37 and an offshore wind rebate program for the installation of meteorological towers,38 in addition to awarding a $4 million grant to Garden State Offshore Energy for a 345.6 MW offshore wind facility tentatively to be located sixteen miles southeast of Atlantic City.39 In Rhode Island, interest in wind energy development in coastal and offshore waters will likely rise as the state seeks to achieve its renewable energy portfolio standard of sixteen percent by 2020.40 To help meet this goal, Governor Donald Carcieri announced in September 2008 that the company Deepwater Wind was selected to construct a wind energy project off Rhode Island’s coast.41 The project will provide an estimated 1.3 million megawatt hours per year, which is approximately fifteen percent of the electricity used in the state.42

States are attracted to wind energy not only as a potential alternative energy source, but also as a potential generator of royalty revenues earned from the leasing of state-owned submerged lands. For example, Texas issued leases to state-owned submerged lands to two different companies.43 Superior Renewable Energy, which subsequently was acquired by Babcock & Brown,44 obtained the largest lease covering 39,900 acres of submerged lands located off Padre Island.45 Texas officials stated that the State expected “to earn anywhere from $34 million to more than $100 million from the lease.”46

Despite projections for having some of these proposed projects online by 2009,47 no wind turbines have been placed in Texas waters. In fact, the Superior Renewable Energy lease was abandoned in 2007, with the company citing the multibillion dollar cost for offshore construction as too high.48 Texas would like to enter into more leases but is having trouble finding takers.49 Recent hurricane activity in the Gulf of Mexico may have made other companies shy of putting billions of dollars in the path of future coastal storms that may have the strength of Hurricanes Katrina or Ike.

Each of the projects described above is proposed for location in waters relatively near the shore because of technology and cost limitations. Current technology allows wind facilities to be located in waters deeper than twenty to thirty meters.50 In fact, existing technology would allow wind turbines to be sited in waters up to fifty meters in depth,51 but at the present time, it is prohibitively expensive to construct the foundations for and to locate facilities in water much deeper than twenty to thirty meters.52 For that reason, most of the 1470 MW of near shore and offshore wind energy capacity in Europe has been constructed in shallow waters that are less than twenty meters in depth.53 Until the cost of deeper water technology drops significantly, twenty to thirty meters is close to the economically feasible limit for offshore wind energy facilities.54 Water depth is significant to South Carolina because along the coast in the area of Horry and Georgetown Counties, the twenty-meter line at times is within three miles of the shore.55 At other places offshore, it is ten to fifteen miles out.56 That means that water-based wind generating facilities may be visible from the shore.

Table 2: A picture of a windmill from different distances57

III. Who Regulates?

“Federal offshore waters” generally extend from 3 to 200 miles from the shore.Under the Submerged Lands Act (SLA), 43 U.S.C. § 1301 (2000), states have title to the submerged lands extending three nautical miles from the low water mark and control over natural resources within that three-mile belt (Florida’s, on its Gulf coast, and Texas’ ownership and control extends 3 marine leagues, which is approximately 10 nautical miles). The United States owns and controls the natural resources between three and two hundred miles from shore, and its control over the continental shelf (the seabed) may extend even further. However, as Table 1 illustrates, nearly 100 gigawatts of South Carolina’s available wind energy is within 30m of water and therefore potentially under simultaneous control of the state.

  1. History

Control and jurisdiction over such valuable offshore resources have been controversial. On September 28, 1945, the Truman Proclamation claimed U.S. jurisdiction and control over the natural resources of the subsoil and seabed of the continental shelf, essentially beginning the modern movement of coastal jurisdictional claims and Law of the Sea. Two years later, the U.S. Supreme Court issued its seminal opinion in United States v. California,58 confirming the federal government’s ownership of the submerged lands and associated natural resources from the tidelands to three miles from shore.59 In 1953, though, under the Eisenhower Administration, Congress effectively reversed United States v. California. In passing the Submerged Lands Act60, Congress gave the states exclusive rights to resources of the “marginal sea”–the band of water up to three nautical miles from shore.61

Thus, federal jurisdiction begins more than three nautical miles from the shore, along the Outer Continental Shelf, and ends two hundred nautical miles out to sea.62 Analyses of offshore wind capacity typically assume that wind farms will be built in federal waters, more than five miles from the coast.63 Therefore federal jurisdiction covers the generation component of an offshore wind project, mainly the turbines.64 This includes site approval and permitting for project construction.65

  1. Modern Developments

Section 388 of the Energy Policy Act of 2005 grants the Department of the Interior (DOI) primary authority over offshore wind farm approval and permitting.66 Section 388 specifies that the Minerals Management Service (MMS), a branch of DOI, controls the offshore wind facility permitting process; the Secretary of the Interior makes the final permitting decision.67 This grant of authority extends MMS’s existing authority under the Outer Continental Shelf Lands Act (OCSLA), which gives it management rights over the Outer Continental Shelf primarily for offshore fossil fuel extraction.68 Because of MMS’s experience with managing offshore oil and gas extraction, Congress deemed it the proper body for offshore wind permitting as well.69 Opponents of the decision have been concerned with MMS’s lack of experience with marine habitat regulation and protection.70 As a result, MMS appears receptive to coordinating with other agencies with relevant experience, like the Army Corps of Engineers, National Marine Fisheries Service, Coast Guard, Department of Energy, and Environmental Protection Agency, as well as appropriate state actors.71

Section 388 came in response to controversy over which federal agency had permitting authority during the early stages of the Cape Wind project. While Section 388 does not resolve all of the issues relating to federal jurisdiction over offshore wind,72 its designation of MMS as the primary permitting agency marks Congress’s first step toward a unified review process for offshore alternative energy.73 Nonetheless, the current federal regulatory environment for offshore wind remains confusing. In April 2009, President Barack Obama took a first step toward remedying some of that confusion by announcing a coordinated program, headed by DOI, for federal offshore renewable energy permitting. The program will cover not only offshore wind power generation, but also other offshore renewable energy, such as electricity generated from ocean currents.74 Despite this progress toward an improved federal regulatory program, barriers to offshore wind power still exist, largely due to the absence of a strong and effective federal mandate promoting offshore wind power development and the powers that states retain over project siting.75

  1. State Jurisdiction

Any electricity generated in an offshore facility must be transmitted to land through the state controlled Coastal Zone. Therefore, state–and sometimes local–authorities ultimately have a role to play in any offshore wind project through the siting and permitting of transmission cables that are necessary to bring electricity from the turbines to land, vessel passage, and other necessities. Although state and localities may only exert direct control over the permitting of transmission cables, they will almost certainly consider the impact of the generation turbines on their aesthetic impact on the environment. They know that denying transmission permits effectively stalls or destroys the construction of generation facilities. States will also likely consider such aesthetic and environmental considerations in the federal consistency review process, with which they may also block federal activities and permits.76 Federal consistency review is a component of the Coastal Management Zone Act (CZMA), and will be described in more detail below.

Because most of the costs of offshore wind power development are local, there is a strong argument for state and local control over offshore wind project siting: because localities must deal with the downsides of offshore wind projects, they should control where those projects are placed.77 On the other hand, there are broader, positive effects of offshore wind power development–such as energy security improvement and environmental benefits like climate change mitigation–that imply a need for stronger federal intervention to balance appropriately the costs and benefits of offshore wind. The CZMA attempts to provide a formal structure for such balancing, but it ultimately leaves the states with too much power, and the federal government and offshore wind farm proponents with no formal federal encouragement or support.78

  1. The Coastal Zone Management Act: Reconciling Local Interests with National Priorities

The overarching goal of the Coastal Zone Management Act (CZMA) is “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.”79 The CZMA mentions the development of energy facilities in the Coastal Zone, but its language is vague, and generally requires only that states undertake “adequate consideration of the national interest” in siting energy facilities, and “give consideration” to any applicable national or interstate energy plan or program.80 The CZMA also mentions energy with regard to funding for development: “The national objective of attaining a greater degree of energy self-sufficiency would be advanced by providing Federal financial assistance to meet state and local needs resulting from new or expanded energy activity in or affecting the coastal zone.”81 However, the CZMA does not mention offshore wind energy or renewable energy at all.

Although the CZMA acknowledges the “national interest in the effective management, beneficial use, protection, and development of the coastal zone,”82 it allows states substantial discretion over their coastal zone management through CZMPs, which the Secretary of Commerce oversees.83 As noted previously, the Submerged Lands Act defines state coastal zones as three miles from the shoreline.84 The CZMA mechanism of federal consistency review extends state power further, past their coastal zones, by allowing states to review and sometimes overrule federal actions and permits in federal waters.85

Before the CZMA was promulgated, the coastal zone had long been subject to decentralized management.86 The CZMA continues this tradition with its own approach to federalism, explicitly encouraging cooperation between local, state, and federal levels of government in their management of coastal resources.87 Specifically, under the CZMA, each state makes its own CZMP.88 The CZMA provides a variety of policy considerations for states to incorporate into their management programs. Prioritizing construction of certain facilities, specifically energy facilities, in states’ coastal zones is one of several listed considerations.89 Others include protecting natural resources; minimizing the loss of life and property to flooding and sea level rise; improving coastal water quality; allowing public recreational access to the coast; restoring urban waterfronts and preserving coastal features; coordinating and simplifying governmental management procedures for coastal resources; consulting and coordinating with federal agencies; giving timely and effective notice for public and local participation in governmental decision making; comprehensive planning for marine resource preservation; and studying sea level rise and land subsidence.90 The Secretary of Commerce examines states’ CZMPs, making sure they are in accordance with the CZMA’s policy considerations and other mandates, and any other federal regulations.91 In particular, the CZMA requires that states adequately consider the national interest in “siting of facilities such as energy facilities which are of greater than local significance. In the case of energy facilities, the Secretary shall find that the State has given consideration to any applicable national or interstate energy plan or program.”92 Once approved by the Secretary of Commerce, however, state CZMPs are subject to very little federal constraint under the CZMA, leaving states with nearly complete discretion within their coastal zones.

State control is expanded by federal consistency review,93 a mechanism unique to the CZMA. Consistency review allows a state to review a federal agency activity or permit within or outside of the coastal zone for compatibility with the state’s CZMP when the activity or permit affects the state’s coastal zone.94 Under this mechanism, the federal agency must submit a “consistency determination” (for an activity) or “consistency certification” (for a permit) to the state before moving forward with the project.95 For federal permits, which would be more relevant to offshore renewable development than federal actions, the state then has the opportunity to concur with or object to the agency’s certification.96 “No license or permit shall be granted by the Federal agency until the state . . . has concurred with the applicant’s certification.”97 Thus, a coastal state’s control extends beyond its own coastal zone into federal waters, as it has the ability to review–and potentially block–any project that affects their coastal zone. In the end, however, the Secretary of Commerce–by her own initiative or in response to an appeal–can overrule the state’s protest by finding that a permit is consistent with the objectives of the CZMA or otherwise in the interest of national security.98

Since the passage of the CZMA in 1972 until March 2010, states had filed 141 appeals with the Secretary protesting federal permits affecting their coastal zones.99 States settled their issues with the federal government in 64 instances, or 45 percent of these cases.100 The Secretary dismissed or overrode state appeals in 32 instances, or 23 percent of these cases.101 Of the remaining 45 appeals that the Secretary considered for their substance, the Secretary overrode the state’s objection in 14 cases, or 31 percent of the time, and accepted the state’s objection in 30 cases, or 67 percent of the time.102 Only 19 of the 45 appeals related to energy facilities, but all of these related to oil or natural gas projects; the Secretary overrode these appeals about half of the time.103 Although states do not choose to use their federal consistency review power over federal permits frequently, as these numbers show, it is nonetheless a powerful tool that extends their power beyond their coastal zones.

  1. Starting the Offshore Energy Process

In 2009, President Barack Obama announced the final regulations for the Outer Continental Shelf (OCS) Renewable Energy Program, which was authorized by the Energy Policy Act of 2005 (EPAct).104 These regulations provide a framework for issuing leases, easements and rights-of-way for OCS activities that support production and transmission of energy from sources other than oil and natural gas. Department of the Interior’s Bureau of Ocean Energy Management (BOEM) is responsible for offshore renewable energy development in Federal waters and anticipates future development on the OCS from three general sources: offshore wind energy, ocean wave energy, and current wave energy.105

  • Offshore Wind Energy –Wind turbines have been installed offshore a number of countries to harness the energy of the moving air over the oceans and convert it to electricity. Offshore winds tend to flow at higher sustained speeds than onshore winds, making turbines more efficient.106
  • Ocean Wave Energy (Hydrokinetic) – There is tremendous energy in ocean waves. Wave power devices extract energy directly from the surface motion of ocean waves. A variety of technologies have been proposed to capture that energy, and some of the more promising designs are undergoing demonstration testing. The Northwestern Coast of the United States has especially high potential for wave energy development, and is one of only a few areas in the world with abundant available wave power resources.107
  • Ocean Current Energy (Hydrokinetic) – Ocean currents contain an enormous amount of energy that can be captured and converted to a usable form. Some of the ocean currents on the OCS are the Gulf Stream, Florida Straits Current, and California Current. Submerged water turbines, similar to wind turbines, may be deployed on the OCS in the coming years to extract energy from ocean currents.108

The BOEM process is not a simplistic plan, but a rigorous study in everything from land surveying to loggerhead sonic sensitivity.109

Table 3: Offshore Alternative Energy Process110

  1. State Participation

This federal process in South Carolina will be completed in cooperation with the South Carolina Department of Health and Environmental Concerns (DHEC). DHEC is responsible for managing ocean resources within South Carolina’s state waters which extend out to three (3) nautical miles offshore. State marine waters include critical habitats for commercially and recreationally important fisheries, as well as significant mineral and sand resources. Due to their proximity to land, state waters are also subject to a growing range of potential human activities including sand mining, submerged transmission cables and energy facilities. In 2008, DHEC established an Ocean Planning Work Group to consider emerging ocean resource issues and develop a plan to guide future ocean research, data collection and mapping, and decision making.111 As previously mentioned, two bills have been introduced to begin the state (3 mile) process for implementing the application/permitting process within state waters.

A collaboration between state, federal, and even local governments will need to be created in order to simplify this process. If a wind farm is installed on the Outer Continental Shelf, with transmission tubes carrying the energy over South Carolina submerged lands, and filtered into local utility/municipal electrical grids then each party is central to the success of this energy source. If a company is to invest in this process, a simplified application and study must be used or the costs/risks will overwhelm the benefit/potential.

  1. Offshore Regulatory Task Force

The Bureau of Energy Management (BOEM) established a South Carolina Renewable Energy Task Force to assist government decision-making within the umbrella of the established BOEM regulatory framework regarding renewable energy leasing and development on the OCS off the coast of South Carolina. Membership of the BOEM South Carolina Task Force is mostly governmental and includes representatives from federal, state, local and tribal governments. The goal is to facilitate intergovernmental communications regarding OCS renewable energy activities.112 This task force meet March 29, 2012 for its first and only meeting (another meeting is set for May 16, 2014) to discuss initiatives and the offshore leasing process.113

A list of the members for this task force is comprised of:

  • S. Army Corps of Engineers
  • S. Coast Guard
  • S. Environmental Protection Agency
  • S. Fish & Wildlife Service
  • Minerals Management Service
  • National Marine Fisheries Service, NOAA
  • Federal Aviation Administration
  • C. DHEC, Bureau of Water
  • C. DHEC, Office of Coastal Resource Management
  • C. Department of Archives & History
  • C. Department of Natural Resources
  • Clemson University Restoration Institute
  • Coastal Carolina University
  • EcoEnergy, LLC
  • North Carolina State University
  • Research Planning, Inc.
  • SCANA
  • Santee Cooper
  • Savannah River Ecology Lab
  • Southern Environmental Law Center
  • C. Coastal Conservation League
  • C. Sea Grant Consortium
  • University of South Carolina, Marine Science Program
  • University of South Carolina, School of the Environment114

The objectives of this group are to identify the proper permitting authorities, identify timeframes for permitting, and identifying the regulatory gaps. As a result the below table was generated for offshore permitting in South Carolina.

Table 4: South Carolina Territorial Waters Permitting Process115

As the table illustrates the proposed permitting is an intergovernmental process requiring compliance with both federal and state law. This conundrum of requirements makes the already costly wind energy prospects seem improbable. At least the local environmental groups support the implementation of wind, with a caveat that the marine wildlife be protected during the studies and the implementation of the wind farms.116

  1. Applicable Maritime Regulations and Laws

When reviewing the permitting structures for offshore wind in the United States of America, three things should be kept in mind: 1) who is holding the land/seabed in title upon which the project will be built, 2) what are the administrative structures/agencies that oversee the application process, and (3) who do these administrative agencies answer to?117

The United States has the most cumbersome and entangled system of permitting regulations for an offshore wind project currently in the World.118 First, in comparison to the British and German regimes, the United States holds land submerged in a public trust.119 The Public Trust Doctrine120 makes such lands open to all, and therefore activities conducted in these areas have to conform to the desire/needs of society as a whole.121 On top of this abstract protection, a wind farm project must navigate regulations and issues of multi-level governance as well as multiple agencies involved in the process. For example, the federal permitting regime requires compliance with the National Environmental Policy Act (“NEPA”),122 Coastal Zone Management Act (“CZMA”),123 Clean Water Act (“CWA”),124 Rivers and Harbors Act (“RHA”),125 and species-protecting statutes such as the Endangered Species Act (“ESA”)126 and the Marine Mammal Protection Act (“MMPA”).127

Within each of these statutes are various applications, permitting requirements and impact analyses to ensure the project is in compliance with each of the regimes. The U.S. has a pseudo-centralized agency, the Bureau of Ocean Energy Management Regulation and Enforcement (“BOEMRE”) that focuses on the development of wind farms on the outer continental shelf. However, final approval requires multi-level governmental cooperation and communication as well as support from the communities potentially impacted by the project.128

  1. The US Energy Policy Act and 30 CFR § 585—“RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING FACILITIES ON THE OUTER CONTINENTAL SHELF”

In 2005, after the Alliance case129 but before the Army Corps could issue a Final EIS in the Cape Wind Project, Congress shifted authority over offshore wind from the Army Corps to Mineral Management Services (MMS) by passing Section 388 of the Energy Policy Act.130 MMS has since taken over the NEPA environmental review process from the Army Corps.131 Now that Congress has designated MMS as the primary agency overseeing Cape Wind and other offshore development, it appears to have resolved the question of who has primary jurisdiction over offshore wind regulation at the federal level. Further, 30 CFR § 585—“RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING FACILITIES ON THE OUTER CONTINENTAL SHELF” provides the outline of authority to regulate offshore energy derives from amendments to subsection 8 of the Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1337), as set forth in section 388(a) of the Energy Policy Act of 2005 (EPAct) (Pub. L. 109–58). The Secretary of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to regulate activities under section 388(a) of the EPA act.132

These regulations specifically apply to activities that:

(a) Produce or support production, transportation, or transmission of energy from sources other than oil and gas; or

(b) Use, for energy-related purposes or for other authorized marine-related purposes, facilities currently or previously used for activities authorized under the OCS Lands Act.133

The offshore energy regulations for BOEM’s renewable energy program under 30 CFR § 585 occur in four distinct phases: (1) planning and analysis,(2) lease issuance, (3) site assessment, and (4) construction and operations. These phases must be worked in cooperation with SC DHEC.

The Planning and Analysis phase seeks to identify suitable areas for wind energy leasing consideration through collaborative, consultative, and analytical processes that engage stakeholders, tribes, and State and Federal government agencies. This is the phase when BOEM conducts environmental compliance reviews and consultations with Tribes, States, and natural resource agencies. In this phase the environmental consequences associated with issuing commercial wind leases and approving site assessment activities on those leases. Environmental and Socioeconomic resources and issues to be considered include, but are not limited to: 134

  • Air Quality
  • Water Quality
  • Marine Mammals
  • Sea Turtles
  • Birds
  • Bats
  • Seafloor Habitats
  • Physical Oceanography
  • Coastal Habitats
  • Socioeconomics
  • Cultural Resources
  • Fisheries
  • Multiple Use Conflicts

The Environmental impact study is likely to take between 12-14 months.135 In which time they will consult the:

  • Endangered Species Act (Section 7)
  • National Historic Preservation Act (Section 106)
  • Government to Government (Federally Recognized Tribes)
  • Magnuson-Stevens Fishery Conservation and Management Act (Essential Fish Habitat)
  • Coastal Zone Management Act (Consistency Determination)
  • Clean Air Act General Conformity Determination
  • Migratory Birds Treaty Act/Executive Order Analysis136

If the proposed action has no significant environmental impact, BOEM will issue a Finding of No Significant Impact (FONSI).137 Of course, this only comes after they decide to allow offshore leasing and have received application for such structures.

The Leasing phase results in the issuance of a commercial wind energy lease. Leases may be issued either through a competitive or noncompetitive process. A commercial lease gives the lessee the exclusive right to subsequently seek BOEM approval for the development of the leasehold. The lease does not grant the lessee the right to construct any facilities; rather, the lease grants the right to use the lease area to develop its plans, which must be approved by BOEM before the lessee can move on to the next stage of the process.138 The process for lease approval includes the following meetings and documents mandatory for approval:

  • Task Force meetings;
  • Stakeholder meetings;
  • National Environmenatal Policy Actscoping meetings and hearings;
  • Federal Registernotices;
  • Request for Information (RFI);
  • Notice of Proposed Lease Area and Request for Competitive Interest(RFCI);
  • Call for Information and Nominations(Call); Proposed Sale Notice (PSN);
  • Notice of Intent (NOI) to prepare a NEPA document; and
  • NEPA document.139

The Site Assessment phase includes the submission of a site assessment plan (SAP), which contains the lessee’s detailed proposal for the construction of a meteorological tower and/or the installation of meteorological buoys on the leasehold. The lessee’s SAP must be approved by BOEM before it conducts these “site assessment” activities on the leasehold. BOEM may approve, approve with modification, or disapprove a lessee’s SAP. It is also during this phase that the lessee would conduct site characterization surveys and studies (e.g., avian, marine mammal, archeological).140

The Construction and Operations phase consists of the submission of a Construction and Operations Plan (COP), which is a detailed plan for the construction and operation of a wind energy project on the lease. BOEM conducts environmental and technical reviews of the COP and decides whether to approve, approve with modification, or disapprove the COP. Prior to the end of the lease term, the developer must submit a plan to decommission facilities.141 Unlike, many Oil and Gas Structures all Wind related construction must be removed from open waters.

VII.More on the Mineral Management Services Alternative Energy Regulations

Although implementing regulations were called for within 270 days of the August 8, 2005, enactment of the Energy Policy Act, and although MMS issued an Advance Notice of Proposed Rulemaking on December 30, 2005,142 final regulations were not published until April 29, 2009.143 Among other issues, the MMS and the Federal Energy Regulatory Commission (FERC) disputed which agency had authority over wave and current energy development.144 Several issues lay at the heart of the dispute, including the savings provision in OCSLA section 8(p)(9), the congressional reservation of “water power” in SLA section 2, and FERC’s existing water power authority in the Federal Power Act (FPA).145

Nevertheless, there was some intervening regulatory progress. In March 2006, the Department of the Interior (DOI) designated the MMS to implement the new Outer Continental Shelf Lands Act (OCSLA) section 8(p) provisions. On November 6, 2007, MMS announced an interim policy for authorization of installation of offshore data collection and technology testing facilities and a proposed lease form for limited-term leases.146 In July 2008, MMS also issued a Notice of Proposed Rulemaking on the OCSLA section 8(p) leasing rules.147 MMS reported that it received 280 written comments in response to the draft regulations.148

The MMS-FERC dispute was eventually resolved and memorialized in an April 2009 Memorandum of Understanding between DOI and FERC.149 The final regulations, referred to by the MMS as the “Final Renewable Energy Framework” followed on April 29, 2009.150 MMS also proceeded with the interim lease process, issuing an environmental assessment and issuing an affirmative lease decision on certain interim leases in June 2009. In August 2009, MMS issued further implementing guidance on the renewable energy leasing framework.151 The regulatory materials outlined above do not address directly the applicability of Maritime Cabotage Laws to U.S. OCS alternative energy activities. However, the regulations require compliance with “all applicable laws” at virtually every material stage of the regulatory process and project life cycle, but no definition expressly defines the “applicable laws.”152

MMS describes its overarching regulatory authority as “requiring compliance with all applicable laws, regulations, and other requirements.”153 In each of the required plan submissions, SAP, COP, and GAP, MMS similarly requires that the plans “must demonstrate that you have planned and are prepared to conduct the proposed . . . activities in a manner that conforms to your responsibilities listed in § 285.105(a) [for SAP and COP] and: (1)Conforms to all applicable laws, regulations, and lease provisions of your commercial lease.”154 MMS also describes its inspection authority in a manner covering all applicable laws and regulations:

The MMS conducts inspections of OCS facilities and any vessels engaged in activities authorized under this part to verify that the applicant is operating in accordance with the OCS Lands Act, the regulations, lease stipulations, conditions of the grant, approved plans, and other applicable laws and regulations, and to determine whether the proper safety equipment is installed and operating properly.155

MMS similarly describes its cessation and cancellation authority to include, among other things, “failure to comply with the OCS Lands Act and other applicable laws.”156 Whether “failure to comply with OCS Lands Act” is meant to subject alternative energy activities to OCSLA section 4(a) and thus all federal laws is not clear. The regulations contain at least a suggestion of support for that view. The definition of “natural resources” for the purpose of section 8(p) leasing authority “include[s], without limiting the generality thereof, renewable energy, oil, gas, and all other minerals (as defined in section 2(q) of the OCS Lands Act), and marine animal and marine plant life.”157 Thus, if MMS applies its regulatory definition of resources in section 8(p) to the administration of OCSLA section 4(a), it may conclude that a wind installation is therefore “for the purpose of exploring for, developing, or producing” a resource covered by OCSLA section 4(a).158

The MMS comments on the final rule also provide some guidance on the meaning of “applicable laws.” The comments include a list of federal laws and executive orders to which MMS will require compliance.159 The (long) list is expressly not exclusive, and therefore not determinative of all applicable laws, but it is nevertheless instructive for three reasons. First, it does not list any Maritime Cabotage Laws. Second, MMS does not expressly assert the applicability of a law pursuant to OCSLA section 4(a). And third, the laws on the list would not necessarily rely on OCSLA section 4(a) to apply to at least some US OCS alternative energy activities. The identified laws are:

  • National Environmental Policy Act of 1969 (MMS cites 42 U.S.C. § 4321 et seq., which applies to any major federal action that may affect the marine environment);
  • Endangered Species Act of 1973 (MMS cites 16 U.S.C. § 1531 et seq., which applies to all federal agency activities and which prohibits without a permit the taking by any person of an endangered species in the territorial sea, and for any person subject to the jurisdiction of the U.S., the taking of an endangered species on the high seas);
  • Marine Mammal Protection Act of 1972, (MMS cites 16 U.S.C. §§ 1361-1407, which prohibits, with certain exceptions, the taking of a marine mammal in the territorial sea, and for any person subject to the jurisdiction of the United States, the taking of a marine mammal on the high seas);
  • Magnuson-Stevens Fishery Conservation and Management Act (MMS cites 16 U.S.C. § 1801 et seq., which applies within the Exclusive Economic Zone (EEZ);
  • Marine Protection, Research, and Sanctuaries Act of 1972 (the Ocean Dumping Act) (MMS cites 33 U.S.C. § 1401 et seq., which generally prohibits the dumping of U.S.-sourced material anywhere in the ocean and foreign-sourced dumping out to twelve miles);
  • National Marine Sanctuaries Act (MMS cites 16 U.S.C. § 1431 et seq., which applies in the 12-mile territorial sea and the EEZ);
  • Executive Order No. 13,186, “Responsibilities of Federal Agencies to Protect Migratory Birds” (January 10, 2001), and Migratory Bird Treaty Act (16 U.S.C. §§ 703-711, which applies to federal actions that have, or are likely to have, a measurable negative effect on migratory bird populations);
  • Coastal Zone Management Act of 1972 (MMS cites 16 U.S.C. § 1451 et seq., which applies to federal actions within or outside the coastal zone that affects any land or water use or natural resources of the coastal zone);
  • Clean Air Act (CAA), title I (MMS cites 42 U.S.C. § 7401 et seq. and discusses the CAA title I requirements, which applies to any equipment, activity, or facility that has the potential to emit any air pollutant and is regulated or authorized under OCSLA);
  • Clean Water Act (CWA), section 311 (MMS cites 33 U.S.C. § 1321 and Executive Order No. 12,777, “Implementation of Section 311 of the Federal Water Pollution Control Act of October 18, 1972,” which regulates any offshore facility subject to U.S. jurisdiction and prohibits discharges of oil in the territorial sea, contiguous zone, in connection with OCSLA activities, or that may affect natural resources of the United States in the EEZ);
  • CWA, sections 402 and 403 (MMS cites 33 U.S.C. §§ 1342 and 1343, pertaining to national pollutant discharge elimination system permits, which regulate pollution discharge permits in the 3-mile territorial sea, the 24-mile contiguous zone, and the high seas);
  • CWA, section 404 (MMS cites 33 U.S.C. § 1344, which regulates dredge and fill permits for disposal of dredged material in navigable waters that may implicate shore side connection activities);
  • Marking of Obstructions (MMS cites 14 U.S.C. § 86, which applies to marking obstructions on the navigable waters and waters above the continental shelf of the United States);
  • Ports and Waterways Safety Act (MMS cites 33 U.S.C. 1221 et seq., which applies within the 12-mile territorial sea);
  • Rivers and Harbors Appropriation Act of 1899 (MMS cites 33 U.S.C. § 401 et seq. and discusses the applicability of section 10, which applies to construction in navigable waters and any structure on the OCS);
  • Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984 (MMS cites 42 U.S.C. § 6901 et seq., which applies to generation and transportation of hazardous waste);
  • National Historic Preservation Act of 1966 (MMS cites 16 U.S.C. §§ 470-470t, which applies to federal undertakings that may affect historic properties);
  • Archaeological and Historical Preservation Act of 1974 (MMS cites 16 U.S.C. §§ 469-469c-2, which applies to any federally licensed activity or program);
  • American Indian Religious Freedom Act of 1978 (MMS cites 42 U.S.C. § 1996 and Executive Order 13,007, “Indian Sacred Sites” (May 24, 1996) which apply to federal actions and federal lands);
  • Federal Aviation Act of 1958 (MMS cites 49 U.S.C. § 44718 and 14 C.F.R. part 77, which regulate objects affecting “navigable airspace” on land and in the 12-mile territorial sea).160

The MMS comments on the intended application of the regulations also provide some insight into the meaning of “applicable laws.” The various regulatory plan requirements “serve as a blueprint for site development, construction, operations, and decommissioning.”161 The General Activities Plan (GAP) requirements characterize “all applicable laws” as the environmental laws relevant for the NEPA review and environmentally safe operation: “The GAP must demonstrate that the applicant plans and is prepared to conduct the proposed activities in a manner that conforms to all applicable laws (e.g., NEPA, MSA, ESA, and CZMA), implementing regulations, lease provisions, and stipulations.”162 Similar comments focusing on environmental laws are provided with respect to a Site Assessment Plan (SAP) and Construction and Operations Plan (COP).163

The regulations regarding operations also appear focused on environmental law compliance:

The regulations that address operations cover environmental management, safety management, inspections, facility assessments, and decommissioning. The regulations on operations are designed to ensure safety and prevent or minimize the likelihood of harm or damage to the marine and coastal environments. . . . In addition, the company will be required to comply with regulations regarding air quality, safety, maintenance and shutdowns, equipment failure, adverse environmental effects, inspections, facility assessments, and incident reporting.164

In addition, the specific plan submission requirements do not appear to request information that would be necessary to evaluate compliance with maritime cabotage laws (for example, vessel ownership, construction, or documentation). For example, a COP must contain “[a] description of any vessels, vehicles, and aircraft that will be used to support the activities.”165 But the only vessel information specifically requested is “[a]n estimate of the frequency and duration of vessel/vehicle/aircraft traffic.”166 Unlike the requirement to identify and evidence the U.S. citizenship (or permanent resident alien status) of prospective lessees,167 the regulations do not require or request information on vessel ownership, construction, or documentation.

In August 2009, MMS released guidance for implementing the alternative energy regulations.168 MMS created the interpretive guidelines to “provide program details and describe the type of information that we are looking for in various submittals that are required.”169 The approximately 100 pages of guidelines and appendices do not address vessel operations or the question of applicable laws.170

VIII.More than just Regulations – American Cabotage

U.S. maritime cabotage laws are often popularly referred to as a group as the “Jones Act.” There are in fact several laws to consider whenever an offshore project is undertaken, whether in waters adjacent to the United States or on the U.S. outer continental shelf (US OCS). Those principal laws are the Jones Act proper, which was enacted as section 27 of the Merchant Marine Act of 1920,171 and separate acts governing the transportation of passengers, towing, and dredging.172 Specifically, those acts, as amended, are the Act of June 19, 1886 (Passenger Vessel Services Act or Passenger Act),173 the Act of June 11, 1940 (Towing Statute),174 and the Dredging Act of 1906 (Dredging Act).175

All of these laws have potential applicability to offshore construction and maintenance of facilities or devices. The Jones Act potentially applies to the transportation of all items to a work site, the Passenger Act potentially applies to any person who might be considered a “passenger” traveling to the work site, the Towing Statute potentially applies to the towing of a barge to a work site, and the Dredging Act potentially applies to the installation of cable on the seabed or other actions taken at the work site.

All of the maritime cabotage laws also require, with some differences, the use of a U.S.-built vessel documented in the United States and owned and operated by a U.S. citizen.176 These requirements, particularly the U.S.-built requirement, have been mentioned by commentators as potential impediments to offshore alternative energy projects and a potential source of business for shipyards.177

The Jones Act gets its name from the principal sponsor of the Merchant Marine Act of 1920, Senator Wesley L. Jones from the State of Washington.178 Adding confusion, another section of the 1920 Act–section 33, which governs claims made by seamen for personal injuries suffered in the course of their employment–is also commonly referred to as the “Jones Act.”179 We will use the term “Jones Act” to mean section 27, which treats cabotage, as it is presently codified with a number of important amplifications and exceptions enacted since 1920.180 When we consider the Jones Act together with the other principal U.S. maritime cabotage laws as a group, we will refer to them as the “Maritime Cabotage Laws.”

  1. The Jones Act

The Jones Act covers “transportation of merchandise by water . . . between points in the United States to which the coastwise laws apply.”181 A related statute provides that “the coastwise laws apply to the United States, including the island territories and possessions of the United States [with several significant exceptions such as the U.S. Virgin Islands].”182 The general definition of the “United States” restricts it to “the States of the United States, the District of Columbia, Guam, Puerto Rico,” and several U.S. possessions (the Virgin Islands, American Samoa, and the Northern Mariana Islands) that are elsewhere statutorily exempted from the coastwise laws.183

Customs and Border Protection (CBP), which is charged with determining which voyages or vessel movements are covered by the Jones Act (and the other Maritime Cabotage Laws),184 has promulgated a regulation that similarly provides, “No vessel shall transport, either directly or by way of a foreign port, any passenger or merchandise between points in the United States embraced within the coastwise laws, including points within a harbor…”185

Although there is some circularity in these formulations, CBP rulings have consistently applied the Jones Act to any point within U.S. navigable waters or “territorial waters.”186 CBP itself has opined, “CBP has consistently ruled that a point in the United States territorial waters is a point in the United States embraced within the coastwise laws.”187 For example, CBP recently indicated that the Jones Act applies in U.S. waters “defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline.”188

Just as consistently, CBP has only applied the Jones Act outside of U.S. navigable waters based upon the extension of federal jurisdiction granted by OCSLA. According to CBP: “In order for an activity to constitute coastwise trade, there must be a transportation between ‘coastwise points.’ In addition to the U.S. territorial waters… coastwise points also include certain points on the Outer Continental Shelf (OCS).”189

CBP has rejected the notion that the 12-mile Proclamation extends the navigable waters for Jones Act purposes to twelve miles.190 According to CBP, “[I]t is our position that the 3-mile territorial sea Customs recognizes for the purposes of the administration of the navigation laws was not affected [by the 12-mile Proclamation.]”191

CBP has been careful to limit the Jones Act to the OCSLA governing law provision, giving effect to the “installations and other devices,” “attachment,” and “exploration, development, or production” purpose provisions in section 4(a).192 CBP has determined, for example, that marker buoys are not installations and other devices and therefore they are not points embraced by the Maritime Cabotage Laws.193 Similarly, dynamically positioned vessels are not coastwise points pursuant to OCSLA because they are not “permanently or temporarily attached to the seabed.”194

CBP has also reasoned that certain activities are not for the purpose of “exploration, development, or production.”195 For example, CBP has determined that wreckage or debris, even if attached to the seafloor, “can in no way be legally perceived as being affixed to the seafloor for exploration, development, or production, purposes as required by the OSCLA.”196 CBP has also determined that a “vessel used solely for pipe laying purposes and not for the purpose of ‘exploring for, developing, or producing resources’ from the OCS is not considered ‘attached’ to the seabed as that term is used in OCSLA and therefore is not a coastwise point.”197 Thus, CBP concludes, “The installation or device must be permanently or temporarily attached, and it must be used for the purpose of exploring for, developing or producing resources therefrom, in order to be considered a coastwise point.”198

In making these judgments, CBP focuses on the 1978 OCSLA amendments.199 CBP frequently cites to the amended section 4(a) and related legislative history indicating that “federal law” applies to installations and devices “when they are connected to the seabed by drillstring, pipes, or other appurtenances, on the OCS for exploration, development, or production purposes.”200

This jurisdictional review is aside from the fact that the Jones Act by its own terms does not apply to all US OCS maritime activity. As noted earlier, however, the exact application of Maritime Cabotage Laws to the marine activities likely to arise in alternative energy offshore projects is outside the scope of this Article.

  1. Other Maritime Cabotage Laws
  2. Passenger Vessel Services Act

The jurisdiction of the Passenger Act overlaps with that of the Jones Act. The Passenger Act provides that “a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel” is a qualified U.S.-flagged vessel.201 As with the Jones Act, CBP implementing regulations closely follow the statute by defining a “coastwise port” as “a port in the U.S., its territories, or possessions embraced within the coastwise laws.”202 Regarding the US OCS, CBP has also carefully limited the application of the Passenger Act consistent with OCSLA section 4(a).203

  1. Towing Statute

The Towing Statute requires the use of a qualified U.S.-flagged vessel for the towing of another vessel “between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port or place” and “from point to point within the harbors of ports or places to which the coastwise laws apply” unless a vessel is in distress.204 In its rulings relating to the Towing Statute, CBP “has taken the position that the statute is to be construed consistently with the Jones Act.”195 Thus, the concept of “places in the United States to which the coastwise laws apply” encompasses points on the US OCS as defined in OCSLA.

The Towing Statute also applies to some vessel movements regardless of the applicability of the Jones Act to the US OCS. As a result of the twelfth proviso to the Jones Act enacted in 1988,196 a qualified U.S. towing vessel is required if the towed vessel is transporting “valueless material or dredged material, regardless of whether it has commercial value” between any point in the United States and any point within the U.S. EEZ and vice versa.197

  1. Dredging Act

The Dredging Act restricts “dredging,” which includes certain pipe or cable laying activities as well as foundation excavations, “in the navigable waters of the United States” to qualified U.S.-flagged vessels.198 According to CBP, it “has long-held that ‘dredging’ . . . is the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.”199 As with the Jones Act, CBP has limited the applicability of the Dredging Act beyond navigable waters to locations on the US OCS consistent with OCSLA section 4(a):

With respect to the applicability of [the Dredging Act] to the OCS, we have held that statute to apply only to dredging on the OCS for the purposes described in section 4 of the OCSLA, and not to dredging done to prepare the seabed of the OCS for the laying of trans-oceanic cable.200

Thus, because dredging for a trans-oceanic cable on the US OCS was not within the purposes outlined in OCSLA section 4(a), the Dredging Act was not implicated, although any subsequent transportation of valueless dredged material would be implicated, pursuant to the extension of the Jones Act to the EEZ for valueless material and dredged material.201

  1. Waiver Authority

All of the Maritime Cabotage Laws, and certain other “navigation and vessel-inspection” related laws, can be waived by the U.S. government in certain limited circumstances, which could come into play if those laws were found to apply to offshore alternative energy projects. Specifically the waiver law provides: “On request of the Secretary of Defense, the head of an agency responsible for the administration of the navigation or vessel-inspection laws shall waive compliance with those laws to the extent the Secretary considers necessary in the interest of national defense.”202 The phrase “navigation and vessel inspection-laws” has been found to include the Maritime Cabotage Laws, as it is “a broad, general description of laws administered by the Coast Guard that must be read expansively.”203 The general waiver authority was utilized by President George W. Bush to waive the Jones Act in limited circumstances following Hurricanes Katrina and Rita in 2005.204

However, the phrase “in the interest of national defense” has historically been interpreted by CBP as placing a heavy burden on any waiver requestor.205 According to CBP, “Owing to the necessity for some national defense justification, requests for waiver of the coastwise laws are infrequently granted.”206 Further, “[A] waiver of the provisions of the coastwise laws cannot be issued solely for economic reasons.”207 Secretary of Homeland Security Chertoff, made findings in support of each of the hurricane waivers that the waivers were in the interest of national defense.208

  1. Placement matters: The United States Continental Shelf

In OCSLA,209 the federal government asserted jurisdiction over the seabed and subsoil of the continental shelf beyond the area ceded to the states in the SLA, established a leasing policy for US OCS minerals, and defined the law applicable to the US OCS.210 Congress indicated that with OCSLA, it wanted to “assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer continental shelf, and to provide for the development of its vast mineral resources.”211 The United States House of Representatives Judiciary Committee report indicates, “The purpose of [the legislation] is to amend the Submerged Lands Act in order that the area in the outer Continental Shelf beyond boundaries of the States may be leased and developed by the Federal Government.”212 Further, the Judiciary Committee reported that the lack of legislation governing leasing in the US OCS had to be remedied and it was “the duty of the Congress to enact promptly a leasing policy for the purpose of encouraging the discovery and development of the oil potential of the Continental Shelf.”213 And as stated by the Supreme Court, “The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures… on the outer Continental Shelf.”214

Section 3 of OCSLA reaffirmed and expanded upon the Truman Proclamation: “It is hereby declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this Act.”215 What had been an assertion of jurisdiction and control over the natural resources of the subsoil and seabed was expanded, at least linguistically, to include the subsoil and seabed itself.216 The expanded jurisdictional claim was, however, limited by OCSLA section 3(b), which provided that the “character as high seas of the waters above the [US OCS] . . . shall not be affected.”217 The intent of section 3(b) was to limit the jurisdictional claim of the United States over the US OCS solely to what was described as “horizontal jurisdiction,” that is, jurisdiction over the seabed, not the waters or airspace above.218

  1. In introducing the bill to the Senate, Senator Cordon explained its inception as follows:

Section 4(a)(1) and (2) of OCSLA applied the governing law compromise:

Thus, pursuant to section 4(a)(1), all federal laws were extended to “artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom,” and pursuant to section 4(a)(2), adjacent state laws were extended as surrogate federal law to “artificial islands and fixed structures erected [on the US OCS]” to the extent not inconsistent with other Federal laws and regulations of the Secretary. OCSLA did not define the term “resources” used in section 4(a).

The Convention recognized the right of coastal states to exercise over the continental shelf “sovereign rights for the purpose of exploring it and exploiting its natural resources.”219 The term “natural resources” is defined in the Convention as the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.220

Coastal state jurisdiction does not include sovereignty over the “superjacent waters as high seas, or that of the airspace above those waters,”221 nor the right to impede the laying of submarine cables or pipelines on the outer continental shelf.222 In order to explore and extract natural resources, the Convention recognized the right of coastal states to “construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources.”223

The United States supported both the jurisdictional scope and the definition of natural resources embodied in the Continental Shelf Convention. The ILC convened in 1950, reported draft articles pertaining to the continental shelf in 1951, 1953, and 1956, and conducted negotiations on the final draft at the United Nations Conference on the Law of the Sea in Geneva between February 24 and April 27, 1958.224

The continental shelf provisions were assigned to Committee IV at the conference. An underlying dispute concerned competing views of the scope of jurisdiction: one group of states sought to extend what was in effect territorial jurisdiction over the continental shelf and the water and airspace above it, while another group sought jurisdiction to control seabed resources, but without extending coastal state territory.225 The United States was in the latter camp. The U.S. delegation stated that it sought “an expansion of international law” with respect to the jurisdictional claims asserted in the Truman Proclamation and section 3 of OCSLA.226 However, the United States was “opposed to anything which might even remotely cast doubt upon the status of the superjacent waters and airspace.”227 The U.S. delegation expressed its commitment to limiting jurisdiction to the seabed and subsoil by citing the protection of the high seas embodied in section 3(b) of OCSLA.228

The phrase “other non-living resources of the sea-bed and subsoil” was included to capture certain nonliving seabed resources that were non-mineral, for example, shells of dead organisms. The committee debate on the final version of the definition explained:

  1. Outer Continental Shelf Lands Act Amendments

The oil supply of 1973 through 1974 led to a search for more domestic sources of oil and gas, which in turn focused government attention on greater development of the US OCS. In addition, OCSLA was found to be inadequate over time with regard to leasing practices, evolving use of equipment, protection of the environment, involvement of states in US OCS decisions, and other matters. The Ad Hoc Select Committee on the Outer Continental Shelf reported:

As a result, Congress enacted the Outer Continental Shelf Lands Act Amendments of 1978, which were signed into law on September 18, 1978.229 Of particular relevance to the present discussion, Congress amended section 4(a) of OCSLA to strike “fixed structures” and add the “permanently or temporarily attached to the seabed” language, which is as it exists today:

The 1978 legislative history provides in part:

The United States House of Representatives also adopted an amendment to section 4(e) of OCSLA applying the laws of the United States relating to operation, design, construction and equipment of vessels, training of vessel crews and control of vessel discharges to foreign-flagged vessels, subject to certain exceptions.230 The section 4(e) amendment applied to any foreign-flagged vessel “conducting any activity pursuant to this Act or in support of any activity pursuant to this Act within the fishery conservation zone or within fifty miles of any artificial island, installation, or other device” referred to in section 4(a) of OCSLA.231 Although that particular provision was not ultimately adopted by Congress, a similar provision was included in the law regarding safety standards and manning requirements for “any vessel, rig, platform, or other vehicle or structure… for activities pursuant to this subchapter.”232

The 1978 Amendments also added several significant definitions to OCSLA. In particular, the Amendments defined each of “exploration,” “development,” and “production” and in each instance with reference to minerals:

  • “Development” means “those activities which take place following discovery of minerals in paying quantities.”233
  • “Minerals” was defined to “include oil, gas, sulphur, geopressured-geothermal and associated resources” and any other “mineral” otherwise specifically authorized by Congress.234

The legislative history of the 1978 amendments provides a glimmer of enlightenment as to whether Congress intended the definitions of the nouns to apply to the respective verbs. One of the House of Representatives reports indicates that the purpose of the “exploration,” “development,” and “production” definitions “is to identify the point, after exploration and before development, beyond which actively [sic] under a lease cannot proceed without an approved development and production plan.”235 The conference report, however, contains nothing similar and merely states that the “conference report retains new definitions included in both the Senate bill and the House amendment” for a number of terms.236 Moreover, the leases for which the terms were defined were leases to explore for, develop, and produce oil and natural gas.

The OCSLA findings and declaration of purposes of OCSLA also support the notion that OCSLA was directed toward mineral recovery. Twelve of the fifteen findings expressly relate to oil and gas and none of the remaining three point to other resource objectives on the US OCS or alternative resource technologies.237 Similarly, the statutory purposes enacted in 1978 are predominantly oil and gas exploration and production purposes.238 Moreover, where the concept of “new and improved technology” enters the picture, it does not suggest the incorporation of technology for new energy sources, but rather technology to “eliminate or minimize risk of damage to the human, marine, and coastal environments,” and “physical obstruction to other users of the waters or subsoil and seabed” from oil and gas related risks such as “blowouts, loss of well control, fires, spillages.”239

When courts have considered OCSLA in a variety of situations they have tended to consider OCSLA an oil and gas statute.

In the Jones Act context, this interpretation is confirmed by at least one decision, 106 Mile Transport Associates v. Koch.240 In 106 Mile Transport, a 1987 decision dealing with the offshore dumping of sludge, the United States District Court for the Southern District of New York rejected the notion that the Jones Act applied to all points on the US OCS.241 Rather, the court found that OCSLA extended Maritime Cabotage Laws “for limited purposes dealing with conservation and exploitation of natural resources.”242 The court concluded, “There is no indication that Congress intended by this statute to extend Federal laws like the Jones Act to sludge dumping sites which are wholly unrelated to the development of natural resources in the seabed of the Continental Shelf.”243

Even more importantly, CBP appears to have interpreted the Jones Act only to apply to “points” on the US OCS involved in the exploration, development, or production of seabed mineral resources. For example, in 1990 the predecessor to CBP ruled that a construction project approximately eight miles off the coast of Massachusetts wholly unrelated to “the exploration, development, or production of natural resources on the seabed of the outer continental shelf” would not constitute a “point” under the Jones Act.244

However, that approach is limited. While the definition of “natural resources” in SLA section 2(e) is referred to in the state territorial grant245 and the federal U.S. OCS assertion of jurisdiction,246 the federal assertion and reservation of U.S. OCS jurisdiction did not include all of the “natural resources” contained in the SLA definition. There are two reasons for this.

Second, the U.S. jurisdictional assertion over OCS resources in the Truman Proclamation in effect at the time of the SLA was substantially narrower in scope than the definition of “natural resources” in the SLA. As to OCS resources, the Truman Proclamation had asserted jurisdiction and control over the “natural resources of the subsoil and seabed.”247 President Truman’s statement releasing the Proclamation further explained that it addressed the “mineral resources of the continental shelf,” and that it did not abridge the character of the waters as high seas.248 The SLA does not suggest an intent by Congress to assert jurisdiction and control over more than the OCS seabed and subsoil resources asserted in the Truman Proclamation.249

  1. The U.S. delegation at UNCLOS

Considering the contemporaneous position of the United States in support of the 1958 Convention–including specifically as to limited OCS jurisdiction and the subsoil mineral-focused definition of natural resources–interpreting the meaning of “resources” in OCSLA as more expansive than “natural resources” in the 1958 Convention would imply that the U.S. delegation advocated for treaty terms that would not have protected internationally the stated interests of the United States. And it would imply that Congress knowingly consented to a treaty in conflict with domestic law. The alternative, that the contemporaneous understanding of OCSLA resources was consistent with the understanding of UNCLOS I resources, appears more plausible.

Moreover, the Fifth Circuit rejected the notion of a conflict between OCSLA and the 1958 Convention, holding: “To the extent that any of the terms of [OSCLA] are inconsistent with the later adopted Geneva Convention on the Continental Shelf, they should be considered superseded.”250 In United States v. Ray, the court addressed two related questions: (1) whether the Army Corps had jurisdiction to require a Rivers and Harbors Act section 10 permit for installations on submerged coral reefs in the US OCS, and (2) whether the coral reefs were OCSLA “resources” subject to the exclusive rights of the federal government and thus warranting of injunctive relief.251

After finding that the reefs were included within the meaning of “seabed” and “subsoil,” and that planned caissons would constitute obstructions to navigation for the purpose of Corps’ permit authority,252 the court addressed whether the federal government had the exclusive right to control the coral, that is, whether coral was an OCSLA resource.253 Whether coral was an OCSLA “resource” was disputed in part over whether coral was a dead part of the seabed or a living resource not subject to OCLSA.254 The court resolved the question by applying to OCSLA the definition of “natural resource” in the Continental Shelf Convention.255

Applying the approach in Ray, the meaning of resources in OCSLA would be interpreted in a manner not inconsistent with the definition of “natural resources” in the Continental Shelf Convention.256 That approach would not likely recognize offshore wind as an OCSLA resource.

As a threshold matter, the United States has not ratified UNCLOS III. The 1958 Convention remains the relevant treaty concerning the continental shelf. Therefore, at least with regard to the approach taken in Ray, UNCLOS III should not inform the meaning of domestic law. Further, the sovereign rights to water and air resources reflected in the UNCLOS III EEZ provisions were plainly not contemplated when either OCSLA or the 1958 Convention were enacted.257 Indeed, the addition of offshore wind as an exploitable resource in the new EEZ provisions, while separately maintaining the existing and distinct continental shelf provisions, underscores that alternative energy in the water and above the surface was not considered an OCSLA resource at the time of the prior Convention. Thus, it does not appear that the meaning of OSCLA resources at the time OCSLA was enacted should be informed by the later extension of sovereign rights over water and air alternative energy resources recognized in the UNCLOS III EEZ provisions.

Nevertheless, it has been suggested that the 1983 EEZ Proclamation characterization of offshore wind energy as a resource of the EEZ and the 2005 OCSLA amendment authorizing OCS alternative energy leasing, taken together, demonstrate congressional intent to include wind energy as an OCSLA “resource” subject to all federal laws, including the Jones Act.258 However, the evidence of such intent is not readily apparent.

While it is well established, as discussed above, that Congress can and has extended certain Maritime Cabotage Laws to the extent of the EEZ, which has not occurred for most Maritime Cabotage Laws. Nor does the plain language of OCSLA, as amended, define “resources” to include alternative energy, nor does it extend OCSLA to encompass the geographical scope or resources reflected in the EEZ Proclamation.

In addition, the absence of a clear OCSLA amendment stands in contrast to the long-standing practice not to apply the EEZ Proclamation domestically, absent legislation.259 Moreover, the newly amended OCSLA section 8(p)(9) expressly states that “nothing in this subsection displaces, supersedes, limits, or modifies the jurisdiction, responsibility, or authority of any Federal or State agency under any other Federal law.”260 The savings provision suggests that the amendment of section 8 should not be interpreted to imply a jurisdictional expansion and substantive modification of the long-standing application of the Maritime Cabotage Laws by CBP.

In the Bush Administration’s view, OCSLA was a “statutory framework for oil, gas, and other mineral activities” that alternative energy leasing could use as “umbrella statutory authority.”261 Amending section 8 alone was intentional, to “allow the Department to build on many of the provisions already in the Act while tailoring this bill’s or this act’s relevant provision to innovative alternative energy-related activities.”262 The statements suggest that the intention was not to apply all OCSLA provisions to the proposed alternative energy activities. Moreover, none of the authorities referenced by the Bush Administration (that the proposed section 8(p) would “build on”) were OCSLA provisions with stated oil and gas purposes. Rather, each of the referenced authorities–interagency agreements, occupational safety, site access, remedies and penalties, and agency coordination–reflect MMS.

Interagency agreement, occupational safety, and site access authorities are contained in section 22 of OCSLA, as amended by section 208 of OCSLA 1978, and apply to any action “promulgated pursuant to this Act.”263 “This Act” refers to OCSLA and, as codified, refers to subchapter III of title 43 of the United States Code (the codification of OCSLA as amended).264 The referenced civil and criminal penalty authority in section 24 of OCSLA similarly applies generally “to enforce any provision of this Act.”265 And the referenced authority regarding “coordination” in section 21 of OCSLA applies to federal agency coordination “in administration of the provisions of Section 21”266 Section 21(c) provides in part for Coast Guard regulation of “unregulated hazardous working conditions” related to “activities on the OCS.”267  Thus, the examples of what section 8(p) would “build on” are provisions of OCSLA that apply generally to all OCSLA activities–pursuant to section 8(p) or otherwise–and therefore do not evidence an intent for oil and gas focused provisions to apply to section 8(p) alternative energy activities.

A similar result is reflected in the OCSLA section 23 “citizen suit” and jurisdiction provisions.268  Section 23(a) authorizes private party causes of action for “any alleged violation” of OCSLA, OCSLA regulation, or OSCLA lease or permit.269  It thus appears that the “citizen suit” provision generally applies to alleged OCSLA violations, including those related to OCSLA-authorized alternative energy activities. However, the broad grant of original federal jurisdiction in section 23 is in part limited to mineral resources. OCSLA provides original federal jurisdiction in federal district court for cases arising out of or in connection with:

(A) any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals, or

(B) the cancellation, suspension, or termination of a lease or permit under this subchapter. Proceedings with respect to any such case or controversy may be instituted in the judicial district in which any defendant resides or may be found, or in the judicial district of the State nearest the place the cause of action arose.270

The Bush Administration’s contemporaneous view is instructive, but it has only limited interpretive value. It is not direct legislative history, for example, statements of congressional purpose contained in a conference report, and it does not expressly address the specific questions of treating alternative energy as an OCSLA “resource” or the applicability of Maritime Cabotage Laws to alternative energy activities.

Thus, while the available history does not tell us what Congress intended, it does show that Congress was aware that the approach of amending section 8 was viewed by supporters and detractors as having limited scope. Silence in this context does not suggest an intent to treat alternative energy as an OCSLA “resource” for all purposes or to apply the EEZ to OCSLA.

  1. “Resources” and “Applicable Laws” in OCSLA Alternative Energy Regulation

On the other hand, MMS’s comments on the section 8(p) leasing regulations suggest that MMS did not consider alternative energy a “resource” to the extent that OCSLA section 4(a) would apply to alternative energy activities. Indeed, despite providing jurisdictional comments on many of the laws MMS identified as “applicable,” it does not expressly rely on section 4(a) of OCSLA to apply any federal law to US OCS alternative energy activities.271 Moreover, a review of the laws on the MMS list shows that the majority have an independent jurisdictional basis to apply to any federally authorized OCS alternative energy activity, and the rest have an independent jurisdictional basis to apply to at least some OCS alternative energy activity.

The only outlier that appears to lack an independent jurisdictional basis to apply to the US OCS is section 404 of the Clean Water Act.272  But while section 404 may not apply of its own force beyond navigable waters, it is almost certainly implicated in an OCS alternative energy project in light of shore side transmission line and connection-related dredging. Thus while the MMS list of applicable laws is by its terms not exclusive, MMS does not appear to have relied on OCSLA section 4(a) as a basis for jurisdiction. That suggests that MMS was not treating alternative energy as an OSCLA section 4(a) “resource” that would trigger the application of all federal laws.

The recently concluded EIS is not especially instructive, but it does convey a mixed message. While the vast bulk of the EIS’s analysis of environmental impacts of the proposed project and project alternatives (including regarding transportation and installation) are silent on these issues, the EIS points out in one section, with respect to vessels, that certain purpose-built vessels may be needed and that “[i]n the early years, such vessels may come from overseas.”273 The EIS does not analyze how foreign vessels could be lawfully utilized on the US OCS, or if the comment refers to activities not within the scope of Maritime Cabotage Laws, how U.S. vessels would later supplant foreign vessels.

In contrast to the ambiguity in the alternative energy EIS, the Final Environmental Impact Statement released by MMS in 2007 for the Oil & Gas Leasing Program expressly addresses the applicability of the Jones Act to OCS oil facilities.

  1. The Merchant Marine Act of 1920 (Jones Act)

The U.S. Customs Service has determined that facilities fixed or attached to the OCS used for the purpose of oil exploration are considered points within the United States. The OCS oil facilities are considered U.S. sovereign territory and fall under the requirements of the Jones Act; so all shipping to and from these facilities related to OCS oil exploration can only be conducted by vessels meeting the requirements of the Jones Act. Shuttle tankering of oil that is produced at OCS facilities can only be legally provided by U.S.-registered vessels and aircraft that are properly endorsed for coastwise trade under the laws of the United States.274

The discussion plainly appears to convey the view that the Jones Act applies only to oil-related OCS facilities. While that is not the same as stating that the Jones Act would not apply to alternative energy activities, that view gains support considering that (1) MMS addressed the OCSLA Energy Policy Act of 2005 amendment earlier in the same discussion without expanding the scope of the Jones Act discussion, and (2) the alternative energy EIS does not contain a similar Jones Act discussion.275

In addition to artificial islands, installations, and devices erected on the US OCS, OCSLA also applies to “any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources.”276  If the words “exploring,” “developing,” and “producing” are limited to minerals related activity, then the reference to “such resources” may be equally so limited and “transporting” would mean “transporting minerals.” In that instance, the same analysis would apply, and the Maritime Cabotage Laws would not apply to the “transporting” of electricity from offshore alternative energy projects on the US OCS.277

Since the OCSLA is substantively insufficient and specifically tailored to oil and mineral resource development, a subsequent issue is whether, without specific legislation on point, the statute the Army Corps is relying upon delegates to the Army Corps’ the regulatory authority to issue permits in federal waters of the outer continental shelf.278

  1. Other Potential Laws that may impact the Installation of Offshore Energy
  2. The Migratory Bird Treaty Act

The Migratory Bird Treaty Act (the “MBTA”) implements four international treaties that the U.S. government has entered into with other countries to protect birds that migrate across U.S. airspace.279  The Fish and Wildlife Service (“FWS”) of the Department of the Interior administers the provisions of the MBTA. Invoking strict liability, the MBTA makes it unlawful:

[T]o pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird [protected under the four treaties].280  By its terms, the MBTA only applies to migratory bird species that are “native to the United States or its territories.”281

Because strict liability attaches for any killing of a migratory bird under the MBTA, wind power developers must carefully examine the presence of migratory birds near their chosen project location. In fact, section 707 of the MBTA provides that:

Any person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.282  Thus, the MBTA creates a sizable economic disincentive to creating a wind power project that leads to the death of migratory birds.283

  1. Bald and Golden Eagle Protection Act

Like the MBTA, the Bald and Golden Eagle Protection Act (“BGEPA”) may affect the location of wind power projects in the United States due to their potential effect on certain birds. The BGEPA prohibits the taking of any bald eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof, and imposes both civil and criminal penalties.284 A taking includes any wounding or killing of the protected eagles.285 In particular, a taking will result in a civil fine of not more than $5,000.286 Each taking constitutes a separate violation of the Act.287  One must note, however, that anyone accused of violating the BGEPA must be given notice of, and an opportunity for a hearing, with respect to each such violation before a fine may be assessed.288  The Secretary of the Fish & Wildlife Service may consider the “gravity of the violation, and the demonstrated good faith of the person charged,” in determining the amount of the penalty.289  In fact, “[f]or good cause shown, the Secretary may remit or mitigate any such penalty.”290 Therefore, while there is no guarantee that a wind turbine project that takes protected eagles will result in a monetary penalty, the potentially steep civil fines may dissuade developers from choosing locations where bald or golden eagles may be affected.

The BGEPA already has resulted in at least one notable effect on U.S. wind power development. The Center for Biological Diversity (“CBD”) invoked the BGEPA in a 2004 complaint against a number of companies operating wind turbines as part of California’s Altamont Pass Wind Resource Area.291 The plaintiffs argued that the turbines caused a taking of many birds, including bald and golden eagles, and that the taking amounted to a violation of the public trust doctrine and an unlawful business practice under California law.292  Although the Alameda Superior Court initially allowed the case to proceed based on this novel pleading, the Court granted the defendants’ motion for judgment on the pleadings on October 12, 2006.293  CBD announced that it would consider appealing the decision.294 Despite the unfavorable ruling, Alameda County supervisors earlier that month had “approved a six-month, $600,000 plan to investigate and monitor effect[s] of the Altamont windmills on avian mortality.”295

While its complaint did not ultimately prevail, the CBD succeeded in calling attention to how wind turbines affect birds–especially bald and golden eagles. Thus, one can expect a proliferation of scientific studies on the effects of wind turbines on all birds and bats, including the fiercely protected bald and golden eagles, as wind power projects become more widespread, even in offshore situations.296

  1. The Endangered Species Act

The Endangered Species Act (the “ESA”), perhaps the most famous and influential environmental law in the United States, affects wind power development in much the same manner as the MBTA.297  The ESA seeks to ensure that all federal departments and agencies utilize their authorities to conserve endangered and threatened species, as well as their ecosystems.298 The Fish & Wildlife Service of the Department of the Interior and the National Marine Fisheries Service of the Department of Commerce administer the law.299 In addition, the ESA commands all other federal agencies to comply with its provisions, even where such protection conflicts with the agency’s primary responsibility.300 The ESA also requires that the Secretary cooperate to the maximum extent practicable with the states, and affords financial incentives to the states for doing so.301

The ESA targets species designated as “endangered” or “threatened” due to one of five designated factors: “(1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence.”302  Importantly, the ESA allows the Secretary to concurrently designate any habitat of an endangered or threatened species as a “critical habitat.”303 The statute affords the Secretary wide discretion in designating critical habitat, requiring that it be done “to the maximum extent prudent.”304 “A designation of critical habitat is not prudent [whenever] . . . (1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or (2) such designation would not be beneficial to the species.”305

Particularly relevant to the development of wind power, section 9 of the ESA makes it illegal to “take any such species within the United States or the territorial sea of the United States.”306  Under the ESA, “the term ‘take’ includes to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”307  Therefore, any activity related to the construction or maintenance of wind turbines could expose an individual or entity to liability where it results in the harming, wounding, or killing of a protected species. While liability would be expressly limited to instances involving certain species expressly designated under the ESA, any wind turbines located within the habitat of such species would be affected. Thus, the ESA would limit the number of locations suitable for wind turbine projects.

Fortunately for developers, the ESA includes a provision that may allow for wind turbines in areas that would be otherwise prohibited. Thanks to a 1982 amendment, the FWS has the power to issue what is known as an “incidental take permit” under §10(a) of the Act to allow “otherwise lawful state or private actions that would result in the incidental taking of listed species.”308 More particularly, the FWS has the direction to issue an incidental take permit to an entity engaged in an otherwise lawful activity to continue actions that may result in a taking, so long as any taking that occurs is incidental to and not the purpose of otherwise lawful activity.309 In theory, then, the FWS could issue incidental take permits to entities responsible for wind turbines in order to mitigate any fear that the entities have regarding liability for incidental takings that could result from turbines.310

Moreover, the ESA includes another requirement that affects potential wind power development. The ESA requires that any non-federal activities that seek an incidental take permit must include a habitat conservation plan (“HCP”) along with the application for the incidental take permit.311 Throughout this process, the public must be given the opportunity to comment on both the permit and the conservation plan proffered by the applicant.312 The habitat conservation planning process helps to ensure that there is adequate minimization and mitigation of the effects of the authorized incidental take before a permit is granted.313 The HCP prerequisite to obtaining an incidental take permit provides a further safeguard against an entity obtaining an incident take permit without first designating how its planned activity will affect the species in question. Drafting an approved HCP also alleviates a private landowner’s uncertainty regarding potential liability or increased regulation.

The Secretary also has the power to grant an exemption from the permit process to a private party based on an “undue economic hardship” arising from the listing of the endangered or threatened species, including “substantial economic loss resulting from an inability . . . to perform contracts . . . [or] substantial economic loss to persons who . . . derived a substantial portion of their income from the [otherwise] lawful taking of any listed species . . . [or] curtailment of subsistence taking.”314 The exemption is limited, however, to one year from publication in the Federal Register.315

One of the greatest benefits of drafting a HCP is that doing so will provide for a “no surprise assurance” through section 10(a)(1)(B).316  A “no surprise assurance” is tantamount to a governmental guarantee to non-federal landowners that the FWS will not require the commitment of additional land, water, or financial compensation; or place additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permittee, should “unforeseen circumstances” arise.317 In fact, the government will honor these assurances as long as the permittee implements and maintains the terms and conditions of the HCP, permit, and other associated documents in good faith.318 The government, in turn, benefits by receiving consistent behavior from the landowner, with any potential effects on listed species already having been reviewed.

  1. The National Environmental Policy Act

The National Environmental Policy Act of 1969 (“NEPA”), invoked in the Cape Wind litigation by the Alliance, will affect any wind power development project that requires federal action significantly affecting the quality of the human environment.319 The purpose of NEPA is to create a national policy that promotes better harmony between mankind and the environment, particularly in regards to environmental damage caused by society.320 This broad applicability makes NEPA an important piece of legislation that must be considered by anyone proposing a wind power project.321

Under NEPA, federal agencies must include in every major federal action significantly affecting the quality of the human environment (including recommendations or reports on proposals for legislation) an “economic impact statement” (“EIS”) detailing the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources involved in the proposed action should it be implemented.322 The Council on Environmental Quality, created by NEPA, has established regulations in 40 C.F.R. 1500-1508 that describe how to prepare an EIS.323

  1. The National Wildlife Refuge Systems Administration Act

Wind power development may occur on lands owned by the federal government that are designated as a national wildlife refuge. The National Wildlife Refuge Systems Administration Act (“NWRSAA”) governs the National Wildlife Refuge System (the “System”), with the purpose of administering a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.324

Particularly important to the development of wind power on wildlife refuge land, the NWRSAA prevents any person from taking or possessing any fish, birds, mammals (including bats) and other wildlife within any refuge area, unless by activities that are otherwise permitted by law, proclamation, regulation, or executive order.325 The Act allows, however, for an exemption to permit the use of any area within the System for any purpose, including but not limited to hunting, fishing, public recreation and accommodations, and access whenever such uses are compatible with the major purposes for which such areas were established.326 Accordingly, any wind power development on refuge land must be compatible with the major purpose for which the refuge was established.327 It is important to note that the NWRSAA already permits easements in, over, across, upon, through, or under any areas within the System for purposes including, but not limited to, the construction and maintenance of power lines, telephone lines, pipelines, and roads.328

As a result, the NWRSAA may allow for wind power development on wildlife refuge space in limited circumstances given its similarity to other approved uses. The Fish and Wildlife Service has published guidelines for the consideration of wind turbines located on easement lands in Region 6.329 The guidelines are intended for use by Refuge Managers and Wetland District Managers for site-by-site consideration of compatibility determinations for individual right-of-way requests for wind turbine use on easement lands.330 The guidelines seek to prevent the alteration or destruction of grassland habitat that could result from the construction of wind turbines on easement land.331 The guidelines are subject to future revision and modification due to ongoing research and monitoring of the effects of wind turbines on wildlife populations.332

In particular, the guidelines restrict turbine frequency to a quota of one turbine per every 160 acres of easement tract.333 Current biological information indicates that this density will not materially interfere with or detract from the purposes of the easement.334 Wind power industry spacing recommendations also advise a distance of not less than 2000 feet between turbines, and a distance of 2000 from an occupied building, in order to prevent clumping of the turbines.335 Turbines also shall not be constructed on wetlands, including lakes, ponds, sloughs, swales, swamps, and potholes.336 Additionally, turbine owners must update bird strike avoidance equipment and implement techniques to reduce the disturbance to nesting birds at turbine sites.337 Of course, any turbines on refuge land must still comply with other environmental laws and regulations, including the ESA and NEPA.

While this law is more applicable to on land wind farms, the impact may not be as farfetched as it appears. A question could be asserted regarding the impact of offshore wind farms on protected land. If the wind farms are shown to impact the wildlife or any other feature of the refuge there could be an asserted violation of the act.

  1. The National Historic Preservation Act

One additional federal statute that may have implications on the future of wind power development in the United States is the National Historic Preservation Act (“NHPA”). The NHPA promotes the federal government’s role in historic preservation through programs and activities, encourages agencies and individuals undertaking preservation by private means, and seeks to assist state and local governments and the National Trust for Historic Preservation in the United States in expanding and accelerating their historic preservation programs and activities.338

The NHPA can affect wind power development by requiring, similar to the NEPA, that federal agencies take into account the effects that actions will have on items or sites listed, or eligible for listing, in the National Register of Historic Places.339 In particular, federal agencies will need to determine the effects that any proposed development will have on listed sites where the development is built, funded, or permitted by a federal agency.340 This statute may become more important as technology advances allow for wind turbines to be placed in offshore settings affecting the esthetics. Other statutes may be invoked as equally unique circumstances arise.341

Table 5: More Federal Laws and Regulations Potentially Applicable to Offshore Wind Power and Aquaculture 342

Law or Regulation Agency Action Subject Jurisdiction Potential Applicability
1. Rivers and Harbors Act (RHA), 33 U.S.C. § 403 and Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1333 Army Corps of Engineers Analyze compatibility w/other uses; consult/coordinate w/other agencies (e.g., NOAA, MMS, and EPA) and make “public interest” determination Obstructions in navigable water Both
1a. Clean Water Act (CWA), 33 U.S.C. § 1344 Army Corps of Engineers (Lead) & U.S. EPA (Veto) Permit Dredging and filling Both if within 3 miles of shore, but depends on action (concurrently with RHA permit)
1b. National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 Lead Agency – Army Corps of Engineers Environmental evaluations (EAs and EISs) Major federal actions significantly affecting the environment Both (as part of RHA permit)
1c. Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-666c U.S. FWS Formal consultation Fish and wildlife consultation Both (part of RHA permit process)
1d. Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1855 NOAA/NMFS Formal consultation Essential fish habitat consultation Both (part of RHA permit process)
1e. Endangered Species Act (ESA), 16 U.S.C. § 1536 NMFS and/or U.S. FWS Formal consultation Species jeopardy or adverse critical habitat modification consultation Both (part of RHA permit process)
1f. MPRSA, 16 U.S.C. § 1434 NOAA Formal consultation Marine sanctuary consultation Both (part of RHA permit process); presently three on Atlantic coast.
1g. Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361 et seq. NMFS and/or U.S. FWS Coordination Marine mammal takes prohibited Potentially applicable to both (part of RHA permit process)
1h. Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq.; Migratory Bird Conservation Act, 16 U.S.C. §§ 715 et seq. U.S. FWS Coordination Migratory birds takes prohibited Wind (part of RHA permit process)
1i. National Historic Preservation Act (NHPA), 16 U.S.C. § 470f State Historic Preservation Officer; Advisory Council on Historic Preservation Formal consultation Historic shipwrecks; archaeological sites; views from historic districts Both, but jurisdiction limited to state waters and land (part of RHA permit process)
1j. Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456 Affected States Certification Actions affecting land, water use of natural resources of coastal zone Both, but only if “affects”
1k. CWA, 33 U.S.C. § 1341 State Water quality certificate State water quality standards Both, if within 3 miles of shore
2. 14 U.S.C. § 83, 85 and 33 C.F.R. Parts 66 and 67 Coast Guard Authorization Private aids to navigation Both (also generally part of RHA permit)
3. Federal Aviation Act of 1958, as amended, 49 U.S.C. § 44701; 14 C.F.R. Part 77 FAA Notice, marking, and lighting Notice if over 200 feet high or near runway. If greater than 500 feet (or under other conditions), considered an obstruction. Wind (address potential impacts by type/direction of lights)
4. CWA, 33 U.S.C. §§ 1342 and 1343 U.S. EPA Permit Pollutant discharge in territorial sea, contiguous zone or ocean Possibly both, but greater consequence for aquaculture
5. Federal Power Act, 16 U.S.C. §§ 824, 824d. FERC Rate setting (does not involve environmental issues) Sale and transmission of electricity between producer and wholesaler Wind (no authority over wind farm permitting/operation)
6. Marine Protection, Research and Sanctuaries Act (MPRSA), 33 U.S.C. § 1412 U.S. EPA Permit Ocean dumping Probably neither (definitely not needed if CWA 402 permit)
7. MPRSA, 33 U.S.C. § 1413 Army Corps of Engineers Permit Transportation for ocean dumping Probably neither

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

XII. The OCS and Wind Resources: Proposed Legislation: H.R. 793 and H.R. 5156

A bill was placed before Congress that would consolidate the authority to “approve and regulate new and existing energy activities on the Outer Continental Shelf with the Minerals Management Service (MMS), which is under the Department of the Interior.”343 The bill was submitted in recognition that “mechanisms do not currently exist by which an applicant can obtain approval from the Federal Government to utilize the Outer Continental Shelf for non-oil and gas related activities.”344 Although the original version (H.R. 5156) failed in Congress due to widespread opposition, the reintroduced version (H.R. 793) remains substantially the same.345 The bill would have transferred to the Secretary of the Interior the “authority to [g]rant an easement or right-of-way for alternative energy on the OCS, including renewable energy projects, such as wave, wind, or solar projects. . .”346

Proponents of this piece of legislation mentioned a couple of benefits from its enactment.347 “First, it will clarify the regulatory process considerably.”348 When a project is proposed by the private sector, there is a starting point for the permitting process which eliminates confusion.276 The private sector would be able to start at a definite point, while in the current situation, the private sector may be “forced to ‘agency shop’ in an attempt to identify an authority that will allow them to move forward on a creative new venture.”349 Also, notice to other federal agencies will facilitate a timely review and consideration.350 A second benefit that it would provide one agency within the federal government with “the tools to comprehensively address in one statute the array of issues associated with permitting and overseeing alternative energy-related uses on the OCS.”351 The reasons given for the Department of the Interior’s lead role is that it is “the primary agency in the federal government to oversee development of our Nation’s federal energy resources.”352 However, this proposed piece of legislation is not without its weaknesses.

Although the proposed legislation set out a framework for unification under one agency and clarifies the process by which a private corporation may attain the requisite property rights from the federal government, it only superficially addressed how the agency would allocate the submerged land for these activities.353 The proposed materials state that by unifying under one federal agency, it will ensure that proposed activities, such as offshore wind development, are conducted in a “safe and environmentally sound manner.”354 However, the proposed legislation lacks substance in providing exactly how or in what manner easements and rights of way will be granted in submerged land and to whom.355 This may explain why it gained no traction and ultimately failed.

One way to be more specific in how submerged land is allocated would be to consider a system such as the leasing program found in the OCSLA.356 This statute contains a mechanism through which a private company may enter into a lease with the federal government for federally owned submerged land.357 Through this type of system, once an area has been identified and properly studied as suitable for development, private companies may enter into competitive bids to lease the land from the federal government.358 The draft legislation set before Congress only stated that easements or rights of way will be granted “on a competitive or noncompetitive basis.”359 Although the government would be compensated under this provision, it is inadequate when compared to the lease program of the OCSLA because the bids may not be competitive and the areas proposed would not have to be scoped out for the resources.360

XIII. Conclusion

The foregoing discussion confirms that all of the Maritime Cabotage Laws apply to activities undertaken within U.S. navigable waters regardless of whether the activity is a traditional oil, natural gas, or an alternative energy project. Outside of U.S. navigable waters, however, there is some uncertainty about the application of the Jones Act, the Passenger Act, and the Towing Statute because all of those laws rely upon OCSLA for their jurisdiction and OCSLA appears, at least at first blush, to be limited to mineral extraction-related activities. Because many offshore alternative energy projects may be undertaken outside of U.S. navigable waters on the US OCS, and it has been alleged that the Maritime Cabotage Laws may impede those projects because of the alleged lack of qualified U.S.-flagged vessels, the issue of whether those laws apply is a significant one. However, many individuals in the U.S. wind energy industry are strong believers in the implementation of the Jones Act.361 The potential to train offshore oil workers, to retool vessels used in the Gulf Oil industry, and the potential revitalization of the U.S. maritime industry are strong reasons to support this notion, however the further delay, added expense, and uncertainty of course are the risk.

The United States and South Carolina are primed for an “all of the above” energy plan, however the over regulation and legalization of every avenue of energy have forced a national reliance on energy resources from outside of US territory. As shown below, wind energy is plentiful however as illustrated above the regulations, laws, process, and construction have made the cost for wind energy unsustainable without government subsidy. The current wind cost is about $1.00 per kwh, verses $0.07 kwh for oil and $0.05 for coal:362

Table 6: South Carolina Offshore Wind Speed Graph 363

The trajectory for the State of South Carolina is to prepare for the implementation of wind, natural gas, and an “all of the above” energy plan, however companies are still submitting applications for seismic testing in the Atlantic. A BOEM record of decision issues is expected in May 2014, meanwhile three companies have resubmitted their previous applications.364 During this time the previously mentioned studies are completed, along with an application for an Incidental Harassment Authorization (IHA) to National Marine Fisheries Service (NMFS) is filed which takes 4 to 8 months for NMFS to complete, companies in East coast states will be asked to review the proposed permits under the Coastal Zone Management Plans – by regulation this is a 60 day review, but could be longer or shorter, and BOEM conducts site specific environmental analysis.365 Once these steps are completed BOEM issues a permit. Best case would be a permit being issued by end of 2014 with survey starting sometime in first half of 2015,366 and the first wind mill being built in 2017.367

The economic impact of the wind industry has already been felt on South Carolina. Currently, 1,134 jobs in South Carolina are related to wind energy or services that support that industry with 1,797 positions generating through indirect and induced wind energy efforts.368 This accounts for $530 million in economic output for South Carolina in 2012, with $29 million in state revenue, and $21 million in local government revenue.369

Should offshore energy become a reality the farms, services, and construction will change the South Carolina landscape in potentially prime South Carolina for prosperity not felt for centuries.

Table 7: Wind Industry Economic Impact in 2016370

Employment 1,106 jobs
Private Non-Farm Employment 1,008 jobs
Total Compensation $54.1 million
Total Impact (Output) $164.7 million
State GDP $87.8 million
Net Local Govt. Revenue -$0.15 million
Net State Govt. Revenue $1.6 million

 

 

 

 

 

 

Table 8: Wind Industry Economic Impact per Year for 2017 – 2036 371

Employment 13 jobs
Private Non-Farm Employment 11 jobs
Total Compensation $1.2 million
Total Impact (Output) $3.2 million
State GDP $1.8 million
Net Local Govt. Revenue $63,000
Net State Govt. Revenue $14,000

 

 

 

 

 

Unfortunately, no matter the economic implications or the willingness of the people,372 with the aforementioned compilation of regulations, laws, studies, applications, permits, leases, combined with the high cost of wind energy, necessity of subsidies, and general risks associated with a novel application the window for this renewable resource may close before it is even opened to the United States and South Carolina. Ironically, many of the laws and regulations, conservation and environmental groups fought to introduce throughout the last century are now delaying the primary alternative energy resource the U.S. possesses.

Much like the implementation of any new crop from Carolina Gold Rice to offshore energy there will be trial and error. Moments of insecurity will arise during it’s growth, but if a harvest is to flourish then a willingness to plant is a necessity. However, until a concise process and a clear plan are introduced, the enigma of the U.S. Energy Policy will continue to deter and delay the potential of offshore energy in South Carolina and the U.S. whether it be natural gas and oil or renewable resources like wind.

Footnotes:

1_ http://www.slowfoodusa.org/ark-item/carolina-gold-rice (last visited April 29, 2014).

2_ http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

3_ http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

4_ http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

5_ http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

6_ http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

7_ http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

8_ http://www.secoastalwind.org/~secoast/images/fact_sheets/JBanks_OSWP12_poster.pdf(last visited April 29, 2014).

9_ www.secoastalwind.org/~secoast/images/fact_sheets/JBanks_OSWP12_poster.pdf (last visited April 29, 2014).

10_ http://www.energy.sc.gov/renewable/wind (last visited April 29, 2014).

11_ http://www.energy.sc.gov/files/view/S1011Windcostrecovery.pdf and http://www.energy.sc.gov/files/view/ H4166.pdf (last visited April 29, 2014).

12_ http:// www.mms.gov/offshore/AlternativeEnergy/PDFs/FEIS/Cape%20Wind% C20Energy%C20Project%F̈EIS.pdf (last visited April 29, 2014).

13_ http:// www.capewind.org/ (last visited April 29, 2014).

14_ Peter B. Brace, Nantucket Shows Signs of Split on Cape Wind, Cape Cod Today, Mar. 12, 2008, http://www.capecodtoday.com (search for “Nantucket shows signs of split,” then follow article link); Mike Seccombe, Fishing Concerns Dominate Cape Wind Hearings, Vineyard Gazette Online, Mar. 14, 2008, http://www.mvgazette.com/article.php?15714; Mike Seccombe, Two Sides Debate Cape Wind Plan, Vineyard Gazette Online, Sept. 25, 2007, http:// www.mvgazette.com/article.php?912. Despite concerns about harm to birds from some quarters, the National Audubon Society determined that studies show minimal threat to birds. Assessing the Threat to Birds, Online News Hour, Nov. 16, 2005, http://www.pbs.org/newshour/indepth_coverage/science/wind_ power/threattobirds.html (last visited April 29, 2014).

15_ Minerals Management Service, U.S. Dep’t of the Interior, Cape Wind Energy Project Final Environmental Impact Statement at http:// www.mms.gov/offshore/AlternativeEnergy/PDFs/FEIS/ Cape%20Wind%C20Energy%C20Project%F̈EIS.pdf (last visited April 29, 2014).

16_ http:// www.capewind.org/article24.htm (last visited April 29, 2014).

17_ Minerals Management Service, U.S. Dep’t of the Interior, Cape Wind Energy Project Final Environmental Impact Statement at http:// www.mms.gov/offshore/AlternativeEnergy/PDFs/FEIS/ Cape%20Wind%C20Energy%C20Project%F̈EIS.pdf (last visited April 29, 2014).

18_ Mineral Management Service, U.S. Dep’t of the Interior, Cape Wind Energy Project Draft Environmental Impact Statement 1-4 (2004) [hereinafter Cape Wind Draft EIS], at http:// www.nae.usace.army.mil/projects/ma/ccwf/ section1.pdf (last visited April 29, 2014).

19_ Minerals Management Service, U.S. Dep’t of the Interior, Cape Wind Energy Project Final Environmental Impact Statement at http:// www.mms.gov/offshore/AlternativeEnergy/PDFs/FEIS/ Cape%20Wind%C20Energy%C20Project%F̈EIS.pdf (last visited April 29, 2014).

20_ Mineral Management Service, U.S. Dep’t of the Interior, Cape Wind Energy Project Draft Environmental Impact Statement 1-4 (2004) [hereinafter Cape Wind Draft EIS], at http:// www.nae.usace.army.mil/projects/ma/ccwf/ section1.pdf (last visited April 29, 2014).

21_Walter Brooks, Long Island Offshore Wind Farm Scuttled; Cape Wind Predicted This Outcome 4 Years Ago, Cape Cod Today, Aug. 24, 2007, http:// www.capecodtoday.com/blogs/index.php/2007/08/24/long_island_offshore_wind_farm_ scuttled?blog=109 (last visited April 29, 2014).

22_ Mineral Management Service, U.S. Dep’t of the Interior, Cape Wind Energy Project Draft Environmental Impact Statement 1-4 (2004) [hereinafter Cape Wind Draft EIS], at http:// www.nae.usace.army.mil/projects/ma/ccwf/ section1.pdf (last visited April 29, 2014).

23_ http://www.mms.gov/offshore/PDFs/CWFiles/68.pdf (last visited April 29, 2014).

24 _Babcock & Brown Buys Bluewater Wind Power Firm, Reuters, Sept. 30, 2007, http://www.reuters.com/article/innovationNews/idUSSYD29636020070930 (last visited April 29, 2014).

25_ Bluewater to Work with Delaware on Wind Farm, Reuters, Nov. 12, 2007, http://uk.reuters.com/article/environmentNews/idUKN0823936520071112 (last visited April 29, 2014).

26_ http://www.bluewaterwind.com/delaware.htm (last visited April 29, 2014).

27_ http://www.bluewaterwind.com/delaware.htm (last visited April 29, 2014).

28_ http://www.bluewaterwind.com/delaware.htm (last visited April 29, 2014).

29_ Jeff Montgomery, Bluewater Wind Owner’s Financial Woes Threaten Offshore Project, The News Journal, Feb. 9, 2009, at A1, available at http:// www.windaction.org/news/19887 (last visited April 29, 2014).

30_ Jeff Montgomery, Bluewater Wind Owner’s Financial Woes Threaten Offshore Project, The News Journal, Feb. 9, 2009, at A1, available at http:// www.windaction.org/news/19887 (last visited April 29, 2014).

31_ Jeff Montgomery, Bluewater Wind Owner’s Financial Woes Threaten Offshore Project, The News Journal, Feb. 9, 2009, at A1, available at http:// www.windaction.org/news/19887 (last visited April 29, 2014).

32_ Aaron Nathans, Bluewater Wind Project OK for Now; Plenty of Time to Line Up Financing, Experts Say, The News Journal, Mar. 18, 2009, at A7, available at http://www.wind-watch.org/news/2009/03/18/bluewater-wind-project-ok-for-now-plenty-of-time-to-line-up-financing-experts-say/ (last visited April 29, 2014).

33_ Renewable Energy Long Island, Long Island Wind Park Description, http:// www.lioffshorewindenergy.org/index.php?module=pagemaster&PAGE_user_op=view_ page&PAGE_id=24. (last visited April 29, 2014).

34_ Renewable Energy Long Island, Long Island Wind Park Description, http:// www.lioffshorewindenergy.org/index.php?module=pagemaster&PAGE_user_op=view_ page&PAGE_id=24 (last visited April 29, 2014).

35 _Bruce Lambert, LIPA Chairman Advises a ‘No’ on Offshore Windmills, N.Y. Times, Aug. 24, 2007, available at http:// www.nytimes.com/2007/08/24/nyregion/ 24lipa.html?scp=1&sq=lipa%20chairman% 20advises&st=cse (last visited April 29, 2014).

36_ Bruce Lambert, LIPA Chairman Advises a ‘No’ on Offshore Windmills, N.Y. Times, Aug. 24, 2007, available at http:// www.nytimes.com/2007/08/24/nyregion/ 24lipa.html?scp=1&sq=lipa%20chairman% 20advises&st=cse (last visited April 29, 2014).

37_ Office of Clean Energy, N.J. Board of Public Utilities, Renewable Energy Incentive Programs, http://www.njcleanenergy.com/renewable-energy/programs/renewable-energy-incentive-program (last visited April 29, 2014).

38_ New In the Matter of the Offshore Wind Rebate Program for the Installation of Meteorological Towers, Docket No. EO08110971 (N.J. Board of Public Utilities Order Nov. 26, 2008), available at http:// njcleanenergy.com/files/file/Board%20Orders/11-21-08-8A.pdf (last visited April 29, 2014).

39_ Press Release, New Jersey Board of Public Utilities, Board of Public Utilities Approves Grant of $4 Million for Offshore Wind Project Proposal (Oct. 3, 2008), http://www.njcleanenergy.com/files/file/Press% 20Releases/20081003.pdf (last visited April 29, 2014).

40_ See R.I. Gen. Laws §39-26-4 (2006).

41_ Press Release, Office of the Governor, State of R.I., Carcieri Names Deepwater Wind as Developer for Rhode Island’s Off-Shore Wind Farm (Sept. 25, 2008), http://www.ri.gov/press/view.php?id=7202 (last visited April 29, 2014).

42_ Press Release, Office of the Governor, State of R.I., Carcieri Names Deepwater Wind as Developer for Rhode Island’s Off-Shore Wind Farm (Sept. 25, 2008), http://www.ri.gov/press/view.php?id=7202 (last visited April 29, 2014).

43 _Texas Bid Could be First U.S. Offshore Wind Farm, RenewableEnergyWorld.com, Oct. 31, 2005, http:// www.renewableenergyworld.com/rea/news/article/2005/10/texas-bid-could-be-first-u-s-offshore-wind-farm-38618 (last visited April 29, 2014).

44 _Babcock & Brown Cancels Wind Farm off Texas, Reuters, June 13, 2007, http://www.reuters.com/article/ bondsNews/idUSN1335705620070613 (last visited April 29, 2014).

45_ Texas Grants Lease for Gulf of Mexico Project, RenewableEnergyWorld.com, May 12, 2006, http:// www.renewableenergyworld.com/rea/news/article/2006/05/texas-grants-lease-for-gulf-of-mexico-wind-project-44884 (last visited April 29, 2014).

46_ Erin Wayman, The Wind Over the Waves: Is Offshore Wind Power the Renewable Energy of the Future?, Geotimes, Apr. 2008, http:// www.geotimes.org/apr08/article.html?id=feature_wind.html (last visited April 29, 2014).

47_ Associated Press, Texas Plans Offshore Wind Farms, Fox News, Nov. 7, 2005, http://www.foxnews.com/story/0,2933,174806,00.html (last visited April 29, 2014).

48_ Babcock & Brown Cancels Wind Farm off Texas, Reuters, June 13, 2007, http://www.reuters.com/article/bondsNews/idUSN1335705620070613 (last visited April 29, 2014).

49_ http:// greeninc.blogs.nytimes.com/2008/10/10/a-few-snags-but-hopes-are-still-high-for-offshore-wind-in-texas/ (last visited April 29, 2014).

50_ Peter Fairley, Wind Power That Floats, Technology Review, Apr. 2, 2008, http:// www.technologyreview.com/energy/20500/ (last visited April 29, 2014).

51_ Erin Wayman, The Wind Over the Waves: Is Offshore Wind Power the Renewable Energy of the Future?, Geotimes, Apr. 2008, http:// www.geotimes.org/apr08/article.html?id=feature_wind.html (last visited April 29, 2014).

52_ Emily Waltz, Offshore Wind May Power the Future, Scientific American, Oct. 20, 2008, available at http:// www.sciam.com/article.cfm?id=offshore-wind-may-power-the-future&page=2 (last visited April 29, 2014).

53_ Emily Waltz, Offshore Wind May Power the Future, Scientific American, Oct. 20, 2008, available at http:// www.sciam.com/article.cfm?id=offshore-wind-may-power-the-future&page=2 (last visited April 30, 2014).

54_ Peter Fairley, Wind Power That Floats, Technology Review, Apr. 2, 2008, http:// www.technologyreview.com/energy/20500/ (last visited April 29, 2014).

55_ Kevin C. Higgins et al., Utility-Related Statutory & Regulatory Barriers, in Coastal Wind: Energy for North Carolina’s Future 207, 207-19 (2009) available at http://www.climate.unc.edu/coastal-wind/Coastal% 20Wind-%20Energy%20for%C20NC2019s%20Future.pdf/at_download/file (last visited April 29, 2014).

56_ Kevin C. Higgins et al., Utility-Related Statutory & Regulatory Barriers, in Coastal Wind: Energy for North Carolina’s Future 207, 207-19 (2009) available at http://www.climate.unc.edu/coastal-wind/Coastal% 20Wind-%20Energy%20for%C20NC2019s%20Future.pdf/at_download/file (last visited April 29, 2014).

57_ http://blogs.app.com/inthemoney/2008/10/03/blowing-in-the-wind/ (last visited April 30, 2014).

58 _United States v. California, 332 U.S. 19 (1947).

59_ United States v. California, 332 U.S. 19 (1947).

60_ 43 U.S.C. §§ 1301-1315 (1953).

61_ The U.S. nevertheless retained the right to regulate, among other things, commerce and navigation in these waters. See also 43 U.S.C. § 1314 (1953). For historical reasons, Texas and Florida on the Gulf coast each maintain jurisdiction out to nine nautical miles. See id. § 1301.

62_ Thomas C. Jensen, Offshore Renewable Energy Development after the Energy Policy Act of 2005, 1 (unpublished paper presented at the American Bar Association Section of Environment, Energy, and Resources 36th Annual Conference on Environmental Law, March 2007), available at http:// www.oceanrenewable.com/wp-content/uploads/2007/03/aba-ocs-paper-final.pdf (last visited April 29, 2014).

63_ European Wind Energy Ass’n, The European Wind Industry: Key Trends and Statistics 2009 3, 5 (2010)http:// www.ewea.org/fileadmin/emag/statistics/2009offshore/pdf/offshore%20stats% 2020092.pdf (last visited April 29, 2014).

64_ Thomas C. Jensen, Offshore Renewable Energy Development after the Energy Policy Act of 2005, 1 (unpublished paper presented at the American Bar Association Section of Environment, Energy, and Resources 36th Annual Conference on Environmental Law, March 2007), available at http:// www.oceanrenewable.com/wp-content/uploads/2007/03/aba-ocs-paper-final.pdf (last visited April 29, 2014).

65_ Thomas C. Jensen, Offshore Renewable Energy Development after the Energy Policy Act of 2005,1 (unpublished paper presented at the American Bar Association Section of Environment, Energy, and Resources 36th Annual Conference on Environmental Law, March 2007), available at http:// www.oceanrenewable.com/wp-content/uploads/2007/03/aba-ocs-paper-final.pdf (last visited April 29, 2014).

66_ 43 U.S.C. § 1337 (2006).

67_ 43 U.S.C. § 1337 (2006).

68_ 43 U.S.C. § 1337 (2006).

69_ Carolyn S. Kaplan, Congress, the Courts, and the Army Corps: Siting the First Offshore Wind Farm in the United States, 31 B.C. Envtl. Aff. L. Rev. 177, 213 (2004).

70_ Carolyn S. Kaplan, Congress, the Courts, and the Army Corps: Siting the First Offshore Wind Farm in the United States, 31 B.C. Envtl. Aff. L. Rev. 177, 191 (2004).

71_ Minerals Mgmt. Serv., U.S. Dep’t of the Interior, Cape Wind Cooperating Agency Contacts & Responsibilities, available at http:// www.mms.gov/offshore/RenewableEnergy/PDF/CapeWindCooperatingAgencyContacts.pdf (MMS’s list of federal, state, and local agencies with which it is cooperating regarding the Cape Wind project) (last visited April 29, 2014).

72_ Thomas C. Jensen, Offshore Renewable Energy Development after the Energy Policy Act of 2005, 1 (unpublished paper presented at the American Bar Association Section of Environment, Energy, and Resources 36th Annual Conference on Environmental Law, March 2007), available at http:// www.oceanrenewable.com/wp-content/uploads/2007/03/aba-ocs-paper-final.pdf (last visited April 29, 2014).

73_ Adam M. Dinnell & Adam J. Russ, The Legal Hurdles to Developing Wind Power as an Alternative Energy Source in the United States: Creative and Comparative Solutions, 27 Nw. J. Int’l L. & Bus. 535, 578 (2007).

74_ Remarks at Trinity Structural Towers Manufacturing Plant in Newton, Iowa, 2009 Daily Comp. Pres. Doc. 282 (Apr. 22, 2009).

75_ Thomas C. Jensen, Offshore Renewable Energy Development after the Energy Policy Act of 2005 (unpublished paper presented at the American Bar Association Section of Environment, Energy, and Resources 36th Annual Conference on Environmental Law, March 2007), available at http:// www.oceanrenewable.com/wp-content/uploads/2007/03/aba-ocs-paper-final.pdf (last visited April 29, 2014).

76 16 U.S.C. § 1456(c)(1)(A), (1)(C), (3)(A) (2006).

77 Robert W. Eberhardt, Note, Federalism and the Siting of Offshore Wind Energy Facilities, 14 N.Y.U. Envtl. L.J. 374, 411-417 (2006).

78 Robert W. Eberhardt, Note, Federalism and the Siting of Offshore Wind Energy Facilities, 14 N.Y.U. Envtl. L.J. 374, 411-417 (2006).

79 16 U.S.C. § 1452(1) (2006).

80 16 U.S.C. § 1455(d)(8) (2006).

81 16 U.S.C. § 1451(j) (2006).

82 16 U.S.C. § 1451(a) (2006).

83 16 U.S.C. §§ 1452(2), 1455(d) (2006).

84 43 U.S.C. §§ 1311-1312 (2006).

85 16 U.S.C. § 1456(c)(1)(A), (1)(C), (3)(A) (2006).

86 Rusty Russell, Neither Out Far Nor In Deep: The Prospects for Utility-Scale Wind Power in the Coastal Zone, 31 B.C. Envtl. Aff. L. Rev. 221, 232-233 (2004).

87 16 U.S.C. § 1452(4)-(5) (2006).

88 16 U.S.C. §§ 1452(2), 1455(d) (2006).

89 16 U.S.C. § 1452(2)(A)-(K) (2006).

90 16 U.S.C. § 1452(2)(A)-(K) (2006).

91 16 U.S.C. §§ 1454, 1455(d) (2006).

92 16 U.S.C. § 1455(d)(8) (2006).

93 16 U.S.C. § 1456(c)(1)(A), (1)(C), (3)(A) (2006).

94 16 U.S.C. § 1456(c)(1)(A), (1)(C), (3)(A) (2006).

95 16 U.S.C. § 1456(c)(1)(C), (3)(A) (2006).

96 16 U.S.C. § 1456(c)(3)(A) (2006).

97 16 U.S.C. § 1456(c)(3)(A) (2006).

98 16 U.S.C. § 1456(c)(3)(A).

99 Office of Ocean & Coastal Resource Mgmt., Nat’l Oceanic & Atmospheric Admin., Appeals to the Secretary of Commerce Under the Coastal Zone Management Act (CZMA) 1 (2010), available at http:// coastalmanagement.noaa.gov/consistency/media/appealslist.pdf (last visited April 29, 2014).

100 Office of Ocean & Coastal Resource Mgmt., Nat’l Oceanic & Atmospheric Admin., Appeals to the Secretary of Commerce Under the Coastal Zone Management Act (CZMA) 1 (2010), available at http:// coastalmanagement.noaa.gov/consistency/media/appealslist.pdf (last visited April 29, 2014).

101 Office of Ocean & Coastal Resource Mgmt., Nat’l Oceanic & Atmospheric Admin., Appeals to the Secretary of Commerce Under the Coastal Zone Management Act (CZMA) 1 (2010), available at http:// coastalmanagement.noaa.gov/consistency/media/appealslist.pdf (last visited April 29, 2014).

102 Office of Ocean & Coastal Resource Mgmt., Nat’l Oceanic & Atmospheric Admin., Appeals to the Secretary of Commerce Under the Coastal Zone Management Act (CZMA) 1 (2010), available at http:// coastalmanagement.noaa.gov/consistency/media/appealslist.pdf (last visited April 29, 2014).

103 Office of Ocean & Coastal Resource Mgmt., Nat’l Oceanic & Atmospheric Admin., Appeals to the Secretary of Commerce Under the Coastal Zone Management Act (CZMA) 1 (2010), available at http:// coastalmanagement.noaa.gov/consistency/media/appealslist.pdf (last visited April 29, 2014).

104 http://www.boem.gov/Renewable-Energy/ (last visited April 29, 2014).

105 http://www.boem.gov/uploadedFiles/30_CFR_585.pdf (last visited April 29, 2014).

106 http://www.boem.gov/Renewable-Energy/ (last visited April 29, 2014).

107 http://www.boem.gov/Renewable-Energy/ (last visited April 29, 2014).

108 http://www.boem.gov/Renewable-Energy/ (last visited April 29, 2014).

109  http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

110 http://www.data.boem.gov/PI/PDFImages/ESPIS/5/5296.pdf (last visited April 29, 2014).

111 http://www.scdhec.gov/environment/ocrm/ocean_management.htm (last visited April 29, 2014).

112 http://www.boem.gov/State-Activities-South-Carolina/ (last visited April 29, 2014).

113 http://www.boem.gov/State-Activities-South-Carolina/ (last visited April 29, 2014).

114 http://www.boem.gov/uploadedFiles/BOEM/Renewable_Energy_Program/State_Activities/ SC%20Offshore%20Wind%20Initiatives_Energy%20Office_VandenHouten.pdf (last visited April 29, 2014).

115 http://www.boem.gov/uploadedFiles/BOEM/Renewable_Energy_Program/State_Activities/SC%20Offshore%20Wind%20Initiatives_Energy%20Office_VandenHouten.pdf (last visited April 29, 2014).

116 Hamilton Davis, Coastal Conservation League (South Carolina), April 3, 2014 Interview (Natural Gas is also being studied and considered. The same concerns for marine wildlife wellbeing are being explored as with wind energy. Environmental Groups in SC are not as concerned with leakage/spills based on the consistence of the natural gas, but with disruption of the ocean floor and with the marine life.)

117 Marc R. Fialkoff, Shipping Lanes and Power Lines: The Port of Davisville and the Dynamic Role of Infrastructure, 18 Roger Williams U. L. Rev. 220, 241-54 (2013).

118 Kurt E. Thomsen, Offshore Wind: A Comprehensive Guide to Successful Offshore Wind Farm Installation 9, 17, 21, 23 (2012).

119 Christine Santora, Nicole Hade, & Jackie Odell, Managing offshore wind developments in the United States: Legal, environmental and social considerations using a case study in Nantucket Sound, 47 Ocean & Coastal Mgmt. 141, 153 (2004).

120 Christine Santora, Nicole Hade, & Jackie Odell, Managing offshore wind developments in the United States: Legal, environmental and social considerations using a case study in Nantucket Sound, 47 Ocean & Coastal Mgmt. 141, 143 (2004).

121 Christine Santora, Nicole Hade, & Jackie Odell, Managing offshore wind developments in the United States: Legal, environmental and social considerations using a case study in Nantucket Sound, 47 Ocean & Coastal Mgmt. 141, 153 (2004).

122 42 U.S.C. §§ 4321-4370f (2006).

123 42 U.S.C. §§ 4321-4370f (2006).

124 33 U.S.C. §§ 1251-1387 (2006).

125 33 U.S.C. §§ 401-467 (2006).

126 7 U.S.C. §§ 136-136y (2006).

127 16 U.S.C. §§ 1361-1423h (2006).

128 Marc R. Fialkoff, Shipping Lanes and Power Lines: The Port of Davisville and the Dynamic Role of Infrastructure, 18 Roger Williams U. L. Rev. 220, 241-54 (2013).

129 Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army (Alliance II), 398 F.3d 105, 116 (1st Cir. 2005).

130 Energy Policy Act of 2005, Pub. L. No. 109-58, § 388, 119 Stat. 594, 745 (codified at 43 U.S.C. § 1337 (2006).

131 See Notice of Availability of Draft Environmental Impact Statement and Public Hearings for the Cape Wind Project Energy Project, 73 Fed. Reg. 3482 (Jan. 18, 2008); Notice of Intent to Prepare an Environmental Impact Statement, 71 Fed. Reg. 30693 (May 30, 2006).

132 30 CFR § 585—“RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING FACILITIES ON THE OUTER CONTINENTAL SHELF”.

133 http://www.boem.gov/uploadedFiles/30_CFR_585.pdf (last visited April 29, 2014).

134 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/ (last visited April 29, 2014).

135 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/ (last visited April 29, 2014).

136 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/ (last visited April 29, 2014).

137 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/ (last visited April 29, 2014).

138 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/ (last visited April 29, 2014).

139 http://www.energy.sc.gov/search/node/wind?page=1(last visited April 29, 2014).

140 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/(last visited April 29, 2014).

141 http://www.boem.gov/RE-Commercial-Leasing-Process-Fact-Sheet/ (last visited April 29, 2014).

142_ 70 Fed. Reg. 77,345 (Dec. 30, 2005).

143_ 74 Fed. Reg. 19,638 (Apr. 29, 2009).

144_ 74 Fed. Reg. 19,638 (Apr. 29, 2009).

145_ 43 U.S.C. §1337(p)(9) (2006).

146_ 72 Fed. Reg. 71,152 (Dec. 14, 2007).

147_ 73 Fed. Reg. 39,376 (July 9, 2008).

148_ 74 Fed. Reg. 19,638 (Apr. 29, 2009).

149_ Memorandum of Understanding Between the U.S. DOI and FERC (Apr. 9, 2009), http://www.mms.gov/offshore/AlternativeEnergy/PDFs/DOI_FERC_MOU.pdf. (last visited April 29, 2014).

150_ 74 Fed. Reg. 19,638 (Apr. 29, 2009).

151_ Minerals Mgmt. Serv. Office of Offshore Alternative Energy Programs, U.S. Dep’t of the Interior, Guidelines for the Minerals Management Service Renewable Energy Framework (2009).

152_ 74 Fed. Reg. 19,638 (Apr. 29, 2009).

153_ 30 C.F.R. §285.102(b) (2009).

154_ 30 C.F.R. §§285.606, .621, .641 (Apr. 29, 2009).

155_ 74 Fed. Reg. 19,706 (Apr. 29, 2009).

156_ 74 Fed. Reg. 19,706 (Apr. 29, 2009).

157_ 30 C.F.R. §285.112 (2009).

158_ OCSLA §4(a), 67 Stat. 462, 462 (1953) (codified as amended at 43 U.S.C. §1333(a) (2006)).

159_ 74 Fed. Reg. 19,647 (Apr. 29, 2009).

160_ 74 Fed. Reg. 19,648-652 (Apr. 29, 2009).

161_ 74 Fed. Reg. 19,652 (Apr. 29, 2009).

162_ 74 Fed. Reg. 19,698 (Apr. 29, 2009).

163_ 74 Fed. Reg. 19,688 (Apr. 29, 2009).

164_ 74 Fed. Reg. 19,652-653 (Apr. 29, 2009).

165_ 74 Fed. Reg. 19,696 (Apr. 29, 2009).

166_ 74 Fed. Reg. 19,848 (Apr. 29, 2009).

167_ 30 C.F.R. §285.106 (2009).

168_ Minerals Mgmt. Serv. Office of Offshore Alternative Energy Programs, U.S. Dep’t of the Interior, Guidelines for the Minerals Management Service Renewable Energy Framework (2009).

169_ Minerals Mgmt. Serv. Office of Offshore Alternative Energy Programs, U.S. Dep’t of the Interior, Guidelines for the Minerals Management Service Renewable Energy Framework (2009).

170_ Constantine G. Papavizas & Gerald A. Morrissey III, Does the Jones Act Apply to Offshore Alternative Energy Projects?, 34 Tul. Mar. L.J. 377, 407-13 (2010).

171_ Constantine G. Papavizas & Bryant E. Gardner, Is the Jones Act Redundant?, 21 U.S.F. Mar. L.J. 95 (2008).

172_ Act of June 5, 1920, ch. 250, 41 Stat. 988.

173_ Ch. 421, §8, 24 Stat. 79, 81 (codified as amended at 46 U.S.C. §55103).

174_ Ch. 324, 54 Stat. 304 (codified as amended at 46 U.S.C. §§55111 and 55118) (formerly 46 U.S.C. §316).

175_ Ch. 2566, 34 Stat. 204 (codified as amended at 46 U.S.C. §55109) (formerly 46 U.S.C. app. §292).

176_ 46 U.S.C. §12112 (setting forth requirements for a “coastwise endorsement” on a vessel’s Certificate of Documentation).

177_ DSME Wins Order for Offshore Wind Farm Planter, Marine Log, Dec. 4, 2009, http://www.marinelog.com/DOCS/NEWSMMIX/2009dec00041.html (last visited April 29, 2014).

178_ Andrew Gibson & Arthur Donovan, The Abandoned Ocean: A History of United States Maritime Policy, 119 (2000).

179_ Constantine G. Papavizas & Gerald A. Morrissey III, Does the Jones Act Apply to Offshore Alternative Energy Projects?, 34 Tul. Mar. L.J. 377, 379-80 (2010).

180_ United States v. California, 332 U.S. 19, 34 n.16, 1947 AMC 1579, 1590 n.16 (1947).

181_ 46 U.S.C. §55102(b) (2006).

182_ 46 U.S.C. §55101 (a)-(b) (2006).

183_ 46 U.S.C. §114 (2006).

184_ 31 U.S.C. §308 (2006); 19 C.F.R. Pt. 0, App. (2009)

185_ 19 C.F.R. §4.80(a) (2013).

186_ CBP, HQ 112023 (Dece. 23, 1991)

187_ http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_ compliance_pubs/merchandise.ctt/merchandise.pdf. (last visited April 29, 2014).

188_ CBP, HQ H032257 (Aug. 1, 2008).

189_ http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_ compliance_pubs/merchandise.ctt/merchandise.pdf. (last visited April 29, 2014).

190_ http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_ compliance_pubs/merchandise.ctt/merchandise.pdf. (last visited April 29, 2014).

191_ http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_ compliance_pubs/merchandise.ctt/merchandise.pdf. (last visited April 29, 2014).

192_ 42 U.S.C. §1333(a) (2006).

193 _E.g., CBP, HQ 015078 (Nov. 7, 2007); CBP, HQ 110959 (Aug. 8, 1990).

194_ CBP, HQ H010211 (Dec. 30, 2007); CBP, HQ 113838 (Feb. 25, 1997).

195_ CBP, HQ H026282 (May 13, 2008).

196_ Act of June 7, 1988, Pub. L. No. 100-329, §5, 102 Stat. 588, 589 (1988).

197_ 46 U.S.C. §55111(b)(3) (2006).

198_ 46 U.S.C. §55109 (2006).

199_ CBP, HQ H012082 (Aug. 27, 2007).

200_ U.S. Customs & Border Protection (CBP), HQ 114715 (June 16, 1999)

201_ 46 U.S.C. §55109 (2006).

202_ Act of Dec. 27, 1950, ch. 1155, §§1, 2, 46 U.S.C. §501.

203_ Nat’l Marine Eng’rs Beneficial Ass’n v. Burnley, 684 F. Supp. 6, 8 (D.D.C. 1988).

204_ Waiver of Compliance with Navigation and Inspection Laws, 70 Fed. Reg. 53,236 (Sept. 7, 2005) (Office of the Sec’y, Dep’t of Homeland Sec.); Waiver of Compliance with Navigation and Inspection Laws; Gulf Coast States, 70 Fed. Reg. 57,611 (Oct. 3, 2005) (Office of the Sec’y, Dep’t of Homeland Sec.).

205_ CBP, HQ H059376 (May 22, 2009); CBP, HQ H046797 (Dec. 12, 2008); CBP, HQ H045777 (Dec. 4, 2008); CBP, HQ 115613 (Mar. 6, 2002). In 1995, CBP denied a waiver request relating to the movement of refrigerated containers from the U.S. Virgin Islands (which originated from the lower forty-eight states) to Puerto Rico, stranded in the Virgin Islands as a result of Hurricane Marilyn. CBP was not persuaded to grant a waiver by the facts that the Virgin Islands would be without electricity for months and therefore the cargo would spoil. CBP, HQ 113569 (May 21, 1995).

206_ CBP, HQ 112085 (Mar. 10, 1992).

207_ CBP, HQ 111867 (Sept. 24, 1991).

208_ Waiver of Compliance with Navigation and Inspection Laws, 70 Fed. Reg. 53,236 (Sept. 7, 2005) (Office of the Sec’y, Dep’t of Homeland Sec.); Waiver of Compliance with Navigation and Inspection Laws; Gulf Coast States, 70 Fed. Reg. 57,611 (Oct. 3, 2005) (Office of the Sec’y, Dep’t of Homeland Sec.).

209_ Outer Continental Shelf Lands Act (OCSLA), Pub. L. No. 83-212, 67 Stat. 462 (1953) (codified as amended at 43 U.S.C. §§1331-1356a).

210_ Outer Continental Shelf Lands Act (OCSLA), Pub. L. No. 83-212, 67 Stat. 462 (1953) (codified as amended at 43 U.S.C. §§1331-1356a).

211_ S. Rep. No. 411, at 2 (1953).

212_ H.R. Rep. No. 83-413 (1953), as reprinted in 1953 U.S.C.C.A.N. 2177, 2177.

213_ H.R. Rep. No. 83-413 (1953), as reprinted in 1953 U.S.C.C.A.N. 2177, 2177.

214_ Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 355, 1969 AMC 1082, 1085 (1969).

215_ OCSLA §3, 67 Stat. at 462 (codified as amended at 43 U.S.C. §1331(a)).

216_ Hearings on S. 1901 Before the S. Comm. on Senate Interior and Insular Affairs, 83d Cong. 586, 587 (1953) (testimony of J. Tate, Deputy Legal Advisor, Dep’t of State)).

217_ OCSLA §3(b), 67 Stat. at 462 (codified as amended at 43 U.S.C. §1332(2)).

218_ Warren M. Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23, 28-29 (1953).

219_ United Nations Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471§2.4, U.N.T.S. 312.

220_ United Nations Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471§3, U.N.T.S. 312.

221_ United Nations Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471 §4, U.N.T.S. 312.

222_ United Nations Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471§5.2, U.N.T.S. 312.

223_ United Nations Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471§5.2, U.N.T.S. 312.

224_ Marjorie M. Whiteman, Conference on the Law of the Sea: Convention on the Continental Shelf, 52 Am. J. Int’l L. 629 (1958).

225_ J.A.C. Gutteridge, The 1958 Geneva Convention on the Continental Shelf, 35 Brit. Y.B. Int’l L. 102, 111-112 (1959).

226_ J.A.C. Gutteridge, The 1958 Geneva Convention on the Continental Shelf, 35 Brit. Y.B. Int’l L. 102, 631-632 (1959).

227_ J.A.C. Gutteridge, The 1958 Geneva Convention on the Continental Shelf, 35 Brit. Y.B. Int’l L. 102, 636 (1959).

228_ J.A.C. Gutteridge, The 1958 Geneva Convention on the Continental Shelf, 35 Brit. Y.B. Int’l L. 102, 636 (1959).

229_ Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA 1978), Pub. L. No. 95-372, 92 Stat. 629 (1978).

230_ H.R. 1614, 95th Cong. §203(e) (1977).

231_ H.R. 1614, 95th Cong. §203(e) (1977).

232_ 43 U.S.C. §1356(a) (2006).

233_ 43 U.S.C. §1331(l) (2006).

234_ 43 U.S.C. §1331(q) (2006).

235_ H.R. Rep. No. 95-590, at 126 (1977), as reprinted in 1978 U.S.C.C.A.N. 1450, 1532.

236_ H.R. Rep. No. 95-1474, at 78 (1978).

237_ OCSLA 1978 §201(q), 92 Stat. at 630-631 (codified as amended at 43 U.S.C. §1331(k)-(m) (2006)).

238_ OCSLA 1978 §102, 92 Stat. at 631-632 (codified as amended at 43 U.S.C. §1331(k)-(m) (2006)).

239_ 43 U.S.C. §1332(6) (2006).

240_ 106 Mile Transport Associates v. Koch, 656 F. Supp. 1474, 1987 AMC 2335 (S.D.N.Y. 1987).

241_ 106 Mile Transport Associates v. Koch, 656 F. Supp. 1474 at 1482, 1987 AMC 2335 at 2338-2339 (S.D.N.Y. 1987).

242_ 106 Mile Transport Associates v. Koch, 656 F. Supp. 1474 at 1482, 1987 AMC 2335 at 2338-2339 (S.D.N.Y. 1987).

243_ 106 Mile Transport Associates v. Koch, 656 F. Supp. 1474 at 1482, 1987 AMC 2335 at 2338-2339 (S.D.N.Y. 1987).

244_ CBP, HQ 111098 (Aug. 8, 1990); CBP, HQ 110956 (June 7, 1990).

245_ SLA §3, 67 Stat. at 30 (1953).

246_ SLA §3, 67 Stat. at 32-33 (1953).

247_ Proclamation No. 2667, 1945 Pub. Papers 352 (Sept. 28, 1945).

248_ Proclamation No. 2667, 1945 Pub. Papers 352 at 354 (Sept. 28, 1945).

249_ Exec. Order No. 9633, 10 Fed. Reg. 12,305 (Sept. 28, 1945).

250_ United States v. Ray, 423 F.2d 16, 21, 1970 AMC 1, 7 (5th Cir. 1970).

251_ United States v. Ray, 423 F.2d 16, 18-21, 1970 AMC 1, 3-4 (5th Cir. 1970).

252_ United States v. Ray, 423 F.2d 16, 20, 1970 AMC 1, 6 (5th Cir. 1970).

253_ United States v. Ray, 423 F.2d 16, 20-22, 1970 AMC 1, 6-8 (5th Cir. 1970).

254_ United States v. Ray, 423 F.2d 16, 22, 1970 AMC 1, 8 (5th Cir. 1970).

255_ United States v. Ray, 423 F.2d 16, 21, 1970 AMC 1, 7 (5th Cir. 1970).

256_ Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 340, 1978 AMC 1404, 1416 (5th Cir. 1978).

257_ The recognition of sovereign rights over offshore wind energy on the EEZ is structured in UNCLOS III as an expansion of sovereignty over the resources above the seabed and seafloor to the water and airspace above it, neither of which were contemplated in (and indeed were expressly excluded from) the 1958 Continental Shelf Convention.

258_ Letter from Rep. James L. Oberstar et al. to Jayson P. Ahern, Acting Commissioner, U.S. Customs & Border Prot. (July 30, 2009) (Comment No. 135 to CBP Notice Regarding Application of the Jones Act, 43 Customs Bull., July 17, 2009, at 54, available at http://foia.cbp.gov/streamingWord.asp?i=32).

259_ 46 U.S.C. §55110 (2006).

260_ 43 U.S.C. §1337(p)(9) (2006).

261_ H.R. 793, 108th Cong.; see Legislative Hearing on H.R. 793 and H.R. 794 Before the H. Subcomm. on Energy and Mineral Resources of the H. Comm. on Resources, 108th Cong. 23 (Mar. 6, 2003) [hereinafter H.R. 793 Hearing] (statement of J. Burton, Dir. of Minerals Mgmt. Serv.).

262_ H.R. 793, 108th Cong.; see Legislative Hearing on H.R. 793 and H.R. 794 Before the H. Subcomm. on Energy and Mineral Resources of the H. Comm. on Resources, 108th Cong. 23 (Mar. 6, 2003) [hereinafter H.R. 793 Hearing] (statement of J. Burton, Dir. of Minerals Mgmt. Serv.).

263_ OCSLA 1978, Pub. L. No. 95-372, §208, 92 Stat. 629, 655 (1978) (codified as amended at 43 U.S.C. §1348(a)) (recognizing interagency agreement authority for enforcement “pursuant to this Act”); id., 92 Stat. at 655-56 (codified as amended at 43 U.S.C. §1348(b)(1)) (requiring occupational safety compliance for “any holder of a lease or permit under this Act” at “all places of employment within the lease area”); id., 92 Stat. at 656 (codified as amended at 43 U.S.C. §1348(b)(3)) (noting site access to “the site of any operation subject to safety regulations”).

264_ 43 U.S.C. §1348(a) (2006).

265_ OCSLA 1978 §208, 92 Stat. at 659 (codified as amended at 43 U.S.C. §1350(b)) (providing for civil penalties for failure to comply with any “provision of this Act”); see also 43 U.S.C. §1350(c) (providing same for criminal penalties).

266_ OCSLA 1978 §208, 92 Stat. at 655 (codified as amended at 43 U.S.C. §1347(f)(1)).

267_ 43 U.S.C. §1347(c)) (2006).

268_ OCSLA 1978 §208, 92 Stat. at 657 (codified as amended at 43 U.S.C. §1347(a)).

269_ OCSLA 1978 §208, 92 Stat. at 657 (codified as amended at 43 U.S.C. §1347(a)).

270_ OCSLA 1978 §208, 92 Stat. at 658 (codified as amended at 43 U.S.C. §1347(a)).

271_ 74 Fed. Reg. 19,638, 19,647-51 (Apr. 29, 2009).

272_ 33 U.S.C. §1344 (2006).

273_ Minerals Mgmt. Serv., U.S. Dep’t of the Interior, Programmatic Environmental Impact Statement for Alternative Energy Development and Production and Alternate Use of Facilities on the Outer Continental Shelf, Final Environmental Impact Statement (2007) [hereinafter EIS], available at http://ocsenergy.anl.gov/documents/fpeis/index.cfm. MMS prepared the EIS pursuant to OCSLA section 8(p)(4), (7), and (9), as well as pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §4321 (2006), Chap. 3 at 23.

274_ Minerals Mgmt. Serv., U.S. Dep’t of the Interior, Outer Continental Shelf Oil & Gas Leasing Program: 2007-2012, Final Environmental Impact Statement app. D, at 7-8 (2007), available at http://www.mms.gov/5-year/2007-2012FEIS.htm (follow “appendix D” hyperlink under “Volume 2” heading) (last visited April 28, 2014).

275_ Minerals Mgmt. Serv., U.S. Dep’t of the Interior, Outer Continental Shelf Oil & Gas Leasing Program: 2007-2012, Final Environmental Impact Statement app. D, at 2 (2007), available at http://www.mms.gov/5-year/2007-2012FEIS.htm (last visited April 29, 2014).

276_ 43 U.S.C. §1333(a)(1) (2006).

277_ Constantine G. Papavizas & Gerald A. Morrissey III, Does the Jones Act Apply to Offshore Alternative Energy Projects?, 34 Tul. Mar. L.J. 377, 425-40 (2010).

278_ Alliance to Protect Nantucket Sound v. United States Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003) (No. 02-11749).

279_ 16 U.S.C. § 703(a) (2000).

280_ 16 U.S.C. § 703(a) (2000).

281_ 16 U.S.C. § 703(b)(1) (2000).

282_ 16 U.S.C. § 707(a) (1998).

283_ Flint Hills Tallgrass Prairie Heritage Found., Inc. v. Scottish Power, PLC, 147 Fed. Appx. 785 (10th Cir. 2005).

284_ 16 U.S.C. § 668 (2000).

285_ 16 U.S.C. § 668(c) (2000).

286_ 16 U.S.C. § 668(b) (2000).

287_ 16 U.S.C. § 668(b) (2000).

288_ 16 U.S.C. § 668(b) (2000).

289_ 16 U.S.C. § 668(b) (2000).

290_ 16 U.S.C. § 668(b) (2000).

291_ Center for Biological Diversity, Inc. v. FPL Group, Inc., Alameda Case No. RG04183113 (Alameda Super. Ct. Nov. 1, 2004) (unreported), Compl. at 26-27, available at http:// www.biologicaldiversity.org/swcbd/programs/bdes/altamont/complaint9.pdf (last visited April 29, 2014).

292_ Center for Biological Diversity, Inc. v. FPL Group, Inc., Alameda Case No. RG04183113 (Alameda Super. Ct. Nov. 1, 2004) (unreported), Compl. at 26-29, available at http:// www.biologicaldiversity.org/swcbd/programs/bdes/altamont/complaint9.pdf (last visited April 30, 2014).

293_ Center for Biological Diversity, Alameda Case No. RG04183113, Order Granting Motions for Judgment on the Pleadings (Oct. 12, 2006), available at http://apps.alameda.courts.ca.gov/fortecgi/fortecgi.exe? Servicename =DomainWebService&PageName=Image&ID=1&Parent=12598900&Action=18994682 (last visited April 30, 2014).

294_ Center for Biological Diversity, Press Release, Judge Dismisses Altamont Pass Bird Kill Lawsuit (Oct. 17, 2006), available at http:// www.biologicaldiversity.org/swcbd/PRESS/altamont-10-17-2006.html (last visited April 30, 2014).

295_ Judge Dismisses Altamont Pass Windmills Bird Deaths Lawsuit, KTVU, Oct. 17, 2006, http://www.ktvu.com/news/10097288/detail.html? rss=fran&psp=news (last visited April 30, 2014).

296_ Don Hopey, Aviary Tracking Raptors to Find Safe Sites For Wind Turbines, Pittsburgh Post-Gazette, Jan. 14, 2007, available at http://www.post-gazette.com/pg/07014/753462-28.stm (last visited April 30, 2014).

297_ 16 U.S.C. §§ 1531-1544 (2000).

298_ 16 U.S.C. §§ 1531(c)(1)(2000).

299_ 16 U.S.C. §§ 1532(15) (2000).

300_ 16 U.S.C. §§ 1531(c)(1)(2000).

301_ 16 U.S.C. §§ 1535 (2000).

302_ 16 U.S.C. §§ 1533(a)(1) (2000).

303_ 16 U.S.C. § 1533(a)(3)(A) (2000).

304_ 16 U.S.C. § 1533(a)(3)(A) (2000).

305_ 50 C.F.R. § 424.12(a)(1)(i)-(ii) (2006).

306_ 16 U.S.C.§ 1538(a)(1)(B) (2000).

307_ 16 U.S.C.§ 1532(19) (2000).

308_ Christopher Carter, A Dual Track For Incidental Takings: Reexamining Sections 7 and 10 of the Endangered Species Act, 19 B. C. ENVTL. AFF. L. REV. 135, 155, (1992).

309_ 16 U.S.C. § 1539(a)(1)(B) (1997).

310_ U.S. Department of the Interior, Service Interim Guidelines on Avoiding and Minimizing Wildlife Impacts from Wind Turbines 36 (2003), available at http://www.fws.gov/habitatconservation/wind.pdf. (last visited April 30, 2014).

311_ 16 U.S.C. § 1539(a)(2)(A); see also U.S. Fish & Wildlife Service, Habitat Conservation Plans: Section 10 of the Endangered Species Act (2005), available at http://www.fws.gov/Endangered/hcp/HCP_Incidental_Take.pdf. (last visited April 30, 2014).

312_ 16 U.S.C. § 1539(a)(2)(B) (2000).

313_ 16 U.S.C. § 1539(a)(2)(B) (2000).

314_ 16 U.S.C. § 1539(b)(1)-(2) (2000).

315_ 16 U.S.C. § 1539(b)(1) (2000).

316_ 16 U.S.C. § 1540(a)(1)(b) (2000).

317_ 16 U.S.C. § 1540(b)(2000).

318_ 16 U.S.C. § 1539(a)(2)(A) (2000).

319_ 42 U.S.C. §§ 4321-47 (2004).

320_ 42 U.S.C. §§ 4321 (2004).

321_ 42 U.S.C. § 4331 (2004).

322_ 42 U.S.C. § 4332(c) (2004).

323_ 42 U.S.C. § 4321 (2004).

324_ 16 U.S.C. § 668dd(a)(2) (2004).

325_ 16 U.S.C. § 668dd(c) (2004).

326_ 16 U.S.C. § 668dd(d)(1(A) (2004).

327_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 36 (May 13, 2003).

328_ 16 U.S.C. § 668dd(d)(1)(B) (2004).

329_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

330_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

331_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

332_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

333_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

334_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

335_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

336_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

337_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 40-41 (May 13, 2003).

338_ 16 U.S.C. §§ 470-470b, 470c-470n (2004).

339_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 36 (May 13, 2003).

340_ Memorandum from Deputy Dir., Fish and Wildlife Serv., U.S. Dep’t of the Interior, to Reg’l Dirs., Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines, at 36 (May 13, 2003).

341_ Another statute that could affect wind power development in a small number of areas is the Coastal Barrier Resources Act (“CBRA”). Section 5(a)(1) of the CBRA, 16 U.S.C. § 3501(a)(1), could possibly prevent future construction of wind power projects near congressionally designated undeveloped coastal barriers on “the Atlantic and Gulf coasts and along the shore areas of the Great Lakes of the United States and the adjacent wetlands, marshes, estuaries, inlets and near shore waters…”

342_ Jeremy Firestone, Willett Kempton, Andrew Krueger, Christen E. Loper, Regulating Offshore Wind Power and Aquaculture: Messages from Land and Sea, 14 Cornell J.L. & Pub. Pol’y 71, 78 (2004).

343_ Mary Helen Yarborough, Bill Would Broaden MMS Authority Over OCS Energy Projects, Inside Energy, July 29, 2002, at 12.

344_ Letter from Rebecca W. Watson, Assistant Secretary of Land and Minerals Management, to Honorable Richard B. Cheney, President of the Senate 1 (June 20, 2002) [hereinafter Letter to Vice President Cheney], available at http://www.mms.gov/ooc/newweb/congressionalaffairs/letter%20to%CCC20VP%20-% 20Jun% 202002.pdf (last visited April 30, 2014).

345_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) (testimony of Peter Shelley, Conservation Law Foundation), 2003 WL 11715984.

346_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) [hereinafter Burton Testimony] (testimony of Johnnie Burton, Director, Minerals Management Service), 2003 WL 11715980.

347_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) [hereinafter Burton Testimony] (testimony of Johnnie Burton, Director, Minerals Management Service), 2003 WL 11715980.

348_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) [hereinafter Burton Testimony] (testimony of Johnnie Burton, Director, Minerals Management Service), 2003 WL 11715980.

349_ Outer Continental Shelf Energy Leasing Act: Hearing on H.R. 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2002) (testimony of Johnnie Burton, Director, Minerals Management Service), 2002 WL 25098173.

350_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) [hereinafter Burton Testimony] (testimony of Johnnie Burton, Director, Minerals Management Service), 2003 WL 11715980.

351_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) [hereinafter Burton Testimony] (testimony of Johnnie Burton, Director, Minerals Management Service), 2003 WL 11715980.

352_ Outer Continental Shelf Lands Act and Federal Coal Resources Act: Hearing on H.R. 793, 794, and 5156 Before the House Resources Comm. Subcomm. on Energy and Mineral Resources (2003) [hereinafter Burton Testimony] (testimony of Johnnie Burton, Director, Minerals Management Service), 2003 WL 11715980.

353_ See Minerals Management Service, U.S. Dep’t of the Interior, Draft Legislation (n.d.), at http:// www.mms.gov/ooc/newweb/congressionalaffairs/ Approved%20Alternate%CCC20Energy%CCC20leg%CCC̈%-%2005-24-02.pdf (last visited April 29, 2014).

354_ Letter from Rebecca W. Watson, Assistant Secretary of Land and Minerals Management, to Honorable Richard B. Cheney, President of the Senate 1 (June 20, 2002) [hereinafter Letter to Vice President Cheney], available at http://www.mms.gov/ooc/newweb/congressionalaffairs/letter%20to%CCC20VP%20-% 20Jun% 202002.pdf (last visited April 29, 2014).

355_ See Minerals Management Service, U.S. Dep’t of the Interior, Draft Legislation (n.d.), at http:// www.mms.gov/ooc/newweb/congressionalaffairs/ Approved%20Alternate%CCC20Energy%CCC20leg%CCC̈%-%2005-24-02.pdf (last visited April 29, 2014).

356_ 43 U.S.C. § 1337 (2000).

357_ 43 U.S.C. § 1337 (2000).

358_ 43 U.S.C. § 1337 (2000).

359_ Minerals Management Service, U.S. Dep’t of the Interior, Draft Legislation (n.d.), at http:// www.mms.gov/ooc/newweb/congressionalaffairs/Approved%20Alternate%CCC20Energy%CCC20leg%CCC̈%-%2005-24-02.pdf (last visited April 29, 2014).

360_ Minerals Management Service, U.S. Dep’t of the Interior, Draft Legislation (n.d.), at http:// www.mms.gov/ooc/newweb/congressionalaffairs/Approved%20Alternate%CCC20Energy%CCC20leg%CCC̈%-%2005-24-02.pdf (last visited April 29, 2014).

361_ Elizabeth Colbert-Busch, Clemson Innovation Center, Interview on April 16, 2014.

362_ Chris Caravelle, Southern Alliance for Clean Energy in Charleston, South Carolina, April 14, 2014.

363_ http://www.boem.gov/uploadedFiles/BOEM/Renewable_Energy_Program/State_Activities/SC%20Offshore%20 Wind%20Initiatives_Energy%20Office_VandenHouten.pdf (last visited April 30, 2014).

364_ Interview with State Representative Stephen Goldfinch, April 21, 2014.

365_ Interview with State Representative Stephen Goldfinch, April 21, 2014.

366_ Interview with State Representative Stephen Goldfinch, April 21, 2014.

367_ Elizabeth Colbert-Busch, Clemson Innovation Center, Interview on April 16, 2014.

368_ http://www.energy.sc.gov/files/OSWPhase2Feb-27-2014FINAL.pdf (last visited April 28, 2014).

369_ http://www.energy.sc.gov/files/OSWPhase2Feb-27-2014FINAL.pdf (last visited April 28, 2014).

370_ http://www.nwf.org/~/media/PDFs/Global-Warming/Reports/NWF_2012OffshoreWind_Final.ashx (last visited April 28, 2014).

371_ http://www.nwf.org/~/media/PDFs/Global-Warming/Reports/NWF_2012OffshoreWind_Final.ashx (last visited April 28, 2014).

372_ Clemson University Restoration Institute Wind Turbine Drivetrain Testing Facility: On October, 2010

Clemson broke ground on the world’s largest turbine drivetrain testing facility on the former Charleston Navy base. This state-of-the-art facility is supported by $98 million in public and private funding ($45 million U.S. DOE grant, $53 million from other public and private sources). The 7.5-megawatt test rig is scheduled to begin commissioning this fall, with the 15-megawatt rig to follow.

July 1, 2014

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